Carter/EGG Claim Form **DISCONTINUED**

[The Mould]

Thanks for the help Toymaker, am thinking of using this as my defence, all thoughts and suggestions gratefully appreciated;

 

1. I, Vic Synex of the spare room, am the defendant in this action and make the following statement as a defence to the claim made by EGG Banking PLC.

 

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 Civil Procedure Rules and is thus eligible for a strike out under CPR 3.4.2 (a).

 

3. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I have made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow me to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

4. The claimant failed to issue a “Letter Before Action” in accordance with Practice Direction Pre-action Conduct, section 11 4.4(1) and section 111 7.1(1) and Annex A part 2.

 

5. It is averred that before the claimant can become entitled to enforce any regulated Credit agreement that he intends to rely upon in these proceedings, the Claimant must first serve a valid Default Notice complying with the prescribed language pursuant to Sections 87 and 88 of the CCA 1974 (as amended) and all subsequent Regulations thereof.

 

6. It is not admitted that any valid Default Notice was ever served upon me and the Claimant is put to strict proof that such document exists and that such Notice was served. The Claimant terminated the account on 30 June 2009.

 

And the Defendant

 

7. Seeks an order that the Claimant’s action is struck out under CPR 3.4.2 (a), or otherwise dismissed, on the grounds that any claim cannot succeed and that the Claimant do pay the Defendant’s costs incurred in defending this action.

Statement of Truth

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

 

Signed

xxxxxxx

Defendant

 

I have amended a little bit of your defence, do you have anything else that you can rely upon in order to beef it up a little bit more?

 

Kind Regards

 

The Mould

[The Mould]

Thanks for the help TM, I was away when you posted, the defence I entered was as above but with a few points added including penalty charges applied to the account.

 

I have now recieved my Allocation Questionnaire and am a bit stuck on what I should be asking for?

 

When do you need to file your AQ by vic?

 

Kind Regards

 

The Mould

[The Mould]

Letter from Carter this morning, he's got a copy of my defence and has offered a reduced amount to settle and avoid judgement!!!

 

Hello vic

 

Post up said letter please.

 

What were the claimant's Particulars of claim please?

 

What amount is the claim for and what settlement amount are they offering to you?

 

No default notice = no entitlement to enforce the agreement/contract, case law authority - Harrison v Link Financial Ltd 2011 EWHC, HH Judge Chambers sitting as Judge of the High Court. Plenty of info on said Judgment has been posted here on these legal forums since Monday 28 February 2011.

 

Kind Regards

 

The Mould

[The Mould]

Good evening vic

 

Settlement to this matter, without prejudice and sign the consent order otherwise we shall apply to the court to have your defence struck out - struck out on what grounds?

 

How much is the claim amount and how much do they want from you as a Settlement payment?

 

Is your AQ form N149 or N150? Have you started to draft your AQ?

 

There is no pleading in the POC's in respect of Default Notice being issued. No Statutory Notice served, no entitlement to enforce, end of claim.

 

OK vic, I have seen your initial (holding) defence against the claim, embarrassed defence and I am not a fan of ED, never mind now. What, as far as your concerned, is your defence against this claim?

 

If you are there tonight vic, I think you need to make an executive decision on this matter, if you are going to continue to defend, then you must make that filing date dead line on the morrow.

 

Kind Regards

 

The Mould

[The Mould]

Hi TM. the claim is for just over £7k, they offered £4500ish as a settlement. The AQ is N150.

 

My defence is no DN but termination notice received, over £300 in penalty charges, not much else really!

 

Well, no DN = no enforcement permited.

 

What were the circumstances upon which the claimant terminated?

 

Are you in a position to counteroffer his settlement offer?

 

Do you want to defend, I mean continue defending?

 

Come back, Roger - over.

 

Kind Regards

 

The Mould

[The Mould]

Thanks TM, I still want to defend but I'm now worried I dont have enough to use as a defence?

 

Egg terminated my card and nearly doubled the interest rate on my account. I sent them a s78 CCA request to check if my agreement allowed them to do this. They failed to provide this despite several reminders and the account went into dispute in March 2009.

Out of the blue a copy of my CCA arrived in May 2009.

I wrote to them expressing concern about the enforceability of the agreed limit wording, next thing they terminated the account. Because they terminated I didn't think it appropriate to continue paying an account which no longer existed.

 

OK, had you missed any payments at the time of termination, if yes, how many payments had you missed and did you or were you in any discussion with the creditor in respect of giving any reason(s) for any such missed or late payments?

 

Can you scan in the CCA copy they supplied you with please?

 

Can you also please scan in the Termination Notice they served upon you?

 

So are you saying that the creditor abandoned the agreement/contract without just cause?

 

Kind Regards

 

The Mould

[The Mould]

OK vic,

 

Have you made a start on filling out the AQ? If you are continuing to defend, then we can go through the AQ tonight so that you have it ready to file and serve on the morrow before 4pm.

 

Kind Regards

 

The Mould

[The Mould]

Just looking at it now and scratching my head!!!

 

This is the termination letter from Egg, the letter terminating the card and the copy of the CCA are filed away, I can scan them tomorrow if need be?

 

 

So as far as Egg are concerned a Default Notice was served upon you. There is no pleading in the POC's in respect of DN being served.

 

Do you have anything in writing from the claimant at the time you had a discussion with him to inform him that no DN had been served and he then said he would allow 14 days further for you to file your defence after it had been sent? He then obtained Default Judgment against, you succeeded in having said Judgment set aside, what evidence did you rely upon in support of your application to set aside?

 

Kind Regards

 

The Mould

[The Mould]

Vic, mind you don't scratch that head of your's too hard, you might end up pulling your hair out:lol:.

 

I need tea and smoke break, do you want to go through the AQ after that?

 

Kind Regards

 

The Mould

[The Mould]

Right then vic,

 

Can you just please tell me what happened before termination ocurred on the loan agreement, did you miss any payments or were any payments to the account late?

 

I need you to be open and honest with me and please do not take any offence to this comment vic.

 

Can you also grab the CCA copy the claimant supplied you with and read through it and find the contratural term thereof that the claimant pleads you are in breach of and post up said term please.

 

Recent case law Judgment handed down this week (Mon 28 Feb 2011) provides an authority for you to rely upon in respect of the Default Notice, said Judgment has held that Statutory Notices such as Default Notices are a pre-condition to enforcement of a credit agreement, this means that without said notice being served enforcement action will not be permitted by the courts.

 

Come back, Roger - over

 

Kind Regards

 

The Mould

[The Mould]

On my N244 I simply stated no DN had been received and that the Claimant had failed to supply a copy of it under a CPR 31.12 request.

 

This was Carter's reply to my request;

 

 

When was Default Judgment awarded against you?

 

Did the claimant file any response to your set aside app?

 

Kind Regards

 

The Mould

[The Mould]

Thank you for that vic

 

Do you think you could reply to my post #24 please. (I am not being funny, I am asking very, very politely vic)

 

Kind Regards

 

The Mould

[The Mould]

TM, I'm looking at the CCA now, Carter has sent a copy of my T&C from when I took the card out and a "current set which I've never seen before. This one mentions Citi Group as the creditor.

The only term I can find is they will ask for the full amount if I repeatedly fail to comply with my obligations, die or become bankrupt!

 

I was a slightly naughty boy and was late for a few payments and went over limit a couple of times.

 

Thank you for that vic

 

Going over limit is not [a] or [the] problem. So if you repeatedly fail to comply with your obligations, they will ask for the full amount owing. So if that is the case, then they must first serve the Statutory and valid/accurate Default Notice, if you fail to remedy the breach relied upon stated therein, then they become entitled to enforce.

 

Anyway, you say that a few payments were late on the account, so you did not actually miss any payment then? How late and did you notify them that the payment was going to arrive later than the date it was due?

 

Tea and smoke and then AQ time vic.

 

Back in 10 mins.

 

Kind Regards

 

The Mould

[The Mould]

I didn't notify them, bit cavalier I know but they never showed as a late payment on my CRA file.

In my job we get paid every 4 weeks so sometimes I would wait until payday till I coughed up!

 

OK vic, no problem, but what about your statements, your account statements, did they show the payments as late payment? Anyway late payments are most certainly not a fundamental breach of the contract, but can you please tell me how often were your payments late to the account and over what duration of time did this ocurr on the account.

 

Next post is the AQ, so I might not see your response to the above for a short while.

 

Kind Regards

 

The Mould

[The Mould]

The AQ vic

 

Pg 1:

 

Q. Have you sent a copy of this completed form to the other party(ies) - TICK YES BOX.

 

A Settlement:

 

Legal representatives - self explanatory (leave blank)

 

For all

 

1. TICK the NO BOX

 

2. Leave blank

 

3. Leave blank

 

4. State your reasons in the box below:

 

As the defendant in these proceedings I do not consider that it would be appropriate to discuss the claim with the claimant with a view to try and settle the dispute because it is my assertion that the claimant holds no right under any enactment or any right at common law to have me held legally responsible for his own wrongdoing, further, whatever his quarrel is, he has yet to put his claim and the cause of action thereof to me and so I have no knowledge of just what is his foundation to his claim.

 

Pg 2:

 

B (should be automatically transfered to your local court)

 

C. Leave blank

 

D. Put the amount that is in dispute in said box

 

Applications - TICK the YES BOX

 

Set aside application

 

Witnessess

 

Put your name in said box.

 

Back in a few mins.

 

Kind Regards

 

The Mould

[The Mould]

Back again vic

 

Carry on with AQ in a minuet.

 

You need to dig those statements out so that you can establish the duration of your late payments to the account, i.e was it over a consecutive period of time or was their a particular patten to the circumstances of late payments - how often?

 

Also, did Egg Terminate the agreement/contract after you had made a request for a copy of said agreement/contract?

 

Kind Regards

 

The Mould

[The Mould]

OK, back to AQ

 

Pg 3

 

Experts - Leave blank

 

Track

 

(the claimant wants his claim to remain in the small claims) - Leave blank (for now anyway)

 

Pg 4

 

E Trial or final hearing

 

Q. How long do you estimate the trial or final hearing will take? - Leave blank

 

Q. Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or final hearing? - If there are any days when you will not be able to attend vic, then put them in the box.

 

F Proposed directions

 

TICK the first box YES

 

TICK the second box NO

 

(I shall draft your proposed directions on the morrow vic)

 

G Costs - Leave blank

 

H Fee - Leave blank

 

Pg 5 (final page)

 

I Other information

 

OK , this is where you need to find those documents that you intend to rely upon, i.e; Account statements showing all payments, letter requesting copy of CCA, copy of Termination Notice etc, etc.

 

Q. Have you attached documents to this questionaire? - TICK the YES box

 

Q. Have you sent these documents to the other party(ies)? - TICK the YES box

 

Q. Is yes, when did they receive them? Put the date (morrows date, because you should serve them upon the claimant (his Solicitors) on the morrow)

 

Q. Do you intend to make any applications in the immediate future? - Leave blank

 

In the space below, set out any further information you consider will help the judge to manage the claim.

 

(In the big box, you are going to bring the Harrison v Link Financial Limited Judgment to the court's attention in respect of Statutory Notices being a pre-condition to enforcement, the claimant has not served a valid nor any Default Notice upon you, therefore as a matter of law he is not permitted to proceed or succeed with his action of enforcement. The claimant is abusing the process and therefore his claim is liable to be struck out by the court without any further notice or waste of the court's resources that have been taken up in the case management of this claim)

 

Signed Mr Vic Date this 4th day of March 2011

(Defendant)

 

Name and address details.

 

Kind Regards

 

The Mould

[The Mould]

TM, late payments were spread over a couple of years, no pattern just as my finances dictated.

 

Egg terminated the use of my card first, along with thousands of others then terminated the account after my s78 request.

 

A couple of years! Blimey, that is very good for your defence vic, I refer you back to said contractural term of the agreement/contract.

 

So you sent CCA request, Egg responded by way of Termination of the agreement/contract, is that correct to say vic?

 

Kind Regards

 

The Mould

[The Mould]

Fantastic TM, will sort relevant docs later on.

 

Many, many thanks for your time and input on this.

 

No problemo memo vic

 

Yes, dig out those doc's, I shall make some time on the morrow morning for Draft Order for Directions, you should then make copies of everything that you are filing to court and serve a copy of each item/doc upon the claimant's Solicitors.

 

Good night vic.

 

Kind Regards

 

The Mould

[The Mould]

Not quite, they eventually sent a copy of the CCA, about which I sent them a letter questioning it's enforceability. They failed to respond to this letter and I received the termination letter about a month later.

 

OK, when they Terminated, were you in arrears at that time, if yes, by how much and were you in dispute also at that time?

 

Going off-line in 5 mins vic.

 

Kind Regards

 

The Mould

[The Mould]

Good morning vic

 

Have a look at this Draft Order for Directions to see if it suits your case.

 

In the (put your local court)

Claim no. xxxxxxxxxxx

 

BETWEEN

 

EGG CLAIMANT

 

 

 

AND

 

 

 

MR VIC SYNEX DEFENDANT

 

 

 

Draft Order for Directions

 

 

　

The claimant shall within 14 days of service of this order file and serve the following:

 

1. Copy of the Credit Agreement executed pursuant to the Consumer Credit Act 1974 (as amended) and all subsequent Regulations thereof (as amended) that he intends to rely upon in these proceedings, the original Credit Agreement to be produced at the Trial or final hearing.

 

2. Copies of all statements of the account upon which his claim relates, from the date the agreement relied upon was concluded between the two parties to the date of termination thereof.

 

3 .Copies of all Statutory Notices served upon the Defendant pursuant to said act and said regulations that have been issued prior to commencement of these proceedings, originals of said notices to be produced at the Trial or final hearing.

 

4. Copy of documentary evidence that substantiates Proof of service of all Statutory Notices served upon the Defendant.

 

5. Copy of any other document(s) relied upon in support of his claim.

 

In Default of this order or any part thereof, the claimant’s claim be struck out without any further order or notice.

 

The defendant shall within 14 days thereafter file and serve the following:

 

1. His sufficiently particularized amended response/defence to the statement(s) and document(s) supplied by the claimant in the form of his signed Statement of Truth and copies of any documents he intends to rely upon in these proceedings.

 

Costs be awarded to the Defendant for time spent preparing and filing/serving his response to the claim.

　

Kind Regards

 

The Mould

　

Edited March 4, 2011 by The Mould
Spacing

[The Mould]

Many thanks TM, Carter has already provided me with copies of the agreement and statements, do I still require them in the directions?

 

I think the account was about £700 in arrears when they terminated it and it was still in dispute as they had failed to reply to my question on unenforceability on the grounds of the "approved limit" wording.

 

OK vic, so because of your dispute, you witheld payment and they then terminated, yes or no?

 

Did Carter supply said doc's in response to your CPR 31.14/31.15 request?

 

Kind Regards

 

The Mould

[The Mould]

Hi TM, Yes to the termination question.

I sent Carter a CPR 31.12 request for CCA and default notice and he sent me the CCA and a set of statements only. Sent him several "reminders" but still no sign of the DN

 

OK vic

 

Ignore point numbers 1 and 2 then of the DOFD.

 

Can you give me a factual example of the amount you were charged as a result of making a late payment, i.e; How late was your payment, how much were you charged as a late payment fee, how were you notified that said charge had been applied?

 

Is there a term in the agreement that expressly provides for any such charges?

 

Kind Regards

 

The Mould

Edited March 4, 2011 by The Mould
Left a word out

[The Mould]

TM, I dont have the statements to hand but it does say in their T&C they can charge £2 for payment other than Direct Debit, £20 Each month your overlimit, £20 late payment, £20 for each returned payment. Not sure of an example of how late a payment is before they add a charge, seem to remember it being pretty quick!

 

OK vic

 

Well have a look at your statements when you have the chance/time, you need to establish if the charge applied does actually reflect the damage suffered as a result of the breach relied upon and that such charges are not excessive or disproportionate, i.e; Did it actually cost the creditor £20 in labour and materials to notify of the charge applied, did said breach actually incurr £20 worths of additional administration to your account?

 

Don't miss that deadline today.

 

Kind Regards

 

The Mould

[The Mould]

Thanks TM, a quick question before I walk down to the court, do I give the court the original documents or will copies suffice?

 

Copies of your doc's vic, not originals.

 

Kind Regards

 

The Mould