backdoor CCJ by mullard after returning car 4 weeks ago!! **DISCONTINUED**

[postggj]

Have you got any statements

 

default notice

termination notice

 

so they have not responded to your cpr request

 

please confirm the above

[just_jue]

Hi, no nothing, as you say in the letter to from the solicitor they are saying I was sent a statement by their client (not saying when though). No reply to my cpr request which was signed for on the 16th August.

No termination notice or default ever received or any info on the GAP insurance I had to have.

 

Thanks

 

 

JJ

[postggj]

thats good enough for me

 

ill start working on the defence

 

if they think they can run rough shot over you

 

they have another thing comming

 

ime quite hopeful on this as if they had the docs

 

why have they not sent them:-)

[just_jue]

That was what I was thinking, would it be worth writing another letter to the solicitor saying I want the information?

[postggj]

do nothing

 

leave everything up to me

 

we now send to the court and the sols a witness statement

 

in it ill ask for the docs to be produced within 14 days vis an unless order

 

if they fail to comply, the court will strike out there claim for abuse of cpr

 

watch the sh%t now hit the fan

[just_jue]

Hi, time is closing in any idea on what to put.

 

Thanks

 

JJ

[dx100uk]

ping postggj

 

dx

[just_jue]

Hi, just checked my credit file on line and on the 24th August this year Mallard Leasing did a credit search on me, any idea why they would do this? As the was the time that I applied to set aside the judgement.

 

Thanks

 

JJ

[postggj]

hi just -ju

 

sorry but been at college all this week (residential) and the computers are monitored so have been restricted.

 

back home now

 

ill rustle up a witness statement draft for you to ponder/ammend this weekend

[postggj]

In the XXXXX county court

 

Claim number ££££££

 

 

 

 

between

MALLARD LEASING claimant

 

and

 

 

££££££££ - Defendant

 

 

 

 

Defence

(Full name and address)

1. I £££££££ of £££££££££ am the defendant in this action and make the following statement as my defence to the claim made by mallard leasing..

 

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. I am embarrassed at pleading to the particulars as they fail to comply with the civil procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the neither figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

 

5. The claimant has failed to also attach a copy of a compliant default notice which they claim has been served under s87 (1) Consumer credit act 1974

 

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit agreement and the Default notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence

 

7. Consequently due to the claimants failure to supply the documents required under the Civil Procedure rules and the fact that the claimant has failed to sufficiently particularized the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof

 

8. I will now look at the important issues relating to this case which must be brought to the courts attention

 

 

The Request for Disclosure

 

(Copy of my CPR 18 request to mallard leasing. attached and also his response)

 

9. Further to the case, on 16 august 2010 by recorded delivery, (copy enclosed) the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice..

 

10. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person

 

11. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists

 

The Credit Agreement

 

 

12. The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

13. Firstly, the agreement must contain certain 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)

 

14. 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. If the agreement does not contain these terms 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

 

16. Notwithstanding point 18, 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

 

17. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

 

18. 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

 

19. With regards to the Authority cited in point 21, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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."

 

20. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers

 

 

The Default Notice

 

21. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

22. 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

 

23. Notwithstanding point 25, 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)

 

24. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

 

Conclusion

 

25. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

 

26. I further ask the court consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly

 

27. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

28. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 12 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the court’s permission to amend my statement of case accordingly.

 

 

 

29. In addition 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 is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

30. The defendant is unable to plead effectievly or at all,

The defendant is embarrassed.

 

 

 

 

 

Statement of Truth

 

 

I £££££££ believe the above statement to be true and factual

 

 

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

 

Date 11th October 2010

---

 

 

RIGHT THEN

 

 

IVE NOT BOTHERED WITH A WITNESS STATEMENT AND GONE STRAIGHT INTO A DEFENCE.

 

 

LETS SEE WHAT THEY COME BACK WITH

 

 

I CAN THEN DO A FULL DEFENCE AFTER THE SEND THE DOCS

 

 

IME NOW GOING TO DO A LETTER FOR YOU TO SEND THE SOLS

 

 

Edited October 10, 2010 by postggj

[postggj]

Jus- ju

Xx

Xx

Mallard leasing (solicitors)

Xxx

Date

Claim number

 

Your ref

 

Dear sir/madam

 

Enclosed is my defence to the claim that your company is handling on behalf of your client mallard leasing.

 

Along with my request for the required information, I require under civil procedure rules the following.

 

1/ a copy of the policy document with reference to the gap (shortfall insurance)

 

2/ I require to inspect the original statement of means document to confirm if this insurance product was suitable.

 

3/ I require inspecting the original consumer credit agreement

 

4/ I require inspecting the original default and termination notice.

 

5/ I require inspecting the original underwriting sheet on the sale of the gap insurance along with the statement of price document

 

I expect you to comply with my request and your obligations under CPR and allow me the opportunity to inspect the original documents at your time and choosing

Edited October 10, 2010 by postggj

[postggj]

now you send the defence and letter

 

to both the court and the solicitors by recorded delivery

 

i take it mallard leasing are still the claimant and no outside dca are involved

 

just fill in the blanks on the defence and letter and your good to go

[dx100uk]

8-)

 

dx

[just_jue]

Hi Post, thank you very much. Will send out today and see what we get back.

 

JJ

[just_jue]

Hi Post & DX, just to let you know I didn't relay on the Post Office to send my defence I took it over this afternoon. Sent my response to their solicitor as well. Will let you know how I get on.

 

Thanks again for all you help and support.

 

JJ

[just_jue]

Hi, does the solicitor have to have a credit licence to collect the debt? I have read on here that the solicitor doesn't have one.

 

Thanks

 

Justin

[just_jue]

They have completely ignored all my letters both BCT & Marling and have now passed it to MCE Portfolio (funnily enough same address as Marlin).

 

What would be the next thing to do complain to the OFT & FOS or go again back to BCT.

 

Thanks

 

JJ

[just_jue]

Sorry to bother you again. I have just had a questionnaire come through the post and need some advice. It writes:

 

'The time for all defendants to file their defences has now elapsed and I am enclosing an allocation questionnaire for you to complete. No further defences have been received.

 

You must complete the allocation questionnaire on or before 20th November 2010 and return it to the court office .

 

A fee of £35 is payable by the claimant on filing of their allocation questionnaire'

 

Does this mean they have not sent in their defence as I have had nothing from them and had no reply to my cpr request.

 

Thanks

[just_jue]

Anybody please

 

JJ

[dx100uk]

jj i've pulled a few strings to see if i can get an ans

 

dx

[postggj]

Correct

 

on the aq

 

we must now request a strike out for lack of witness statement or lack of reply to your defence,lack of cpr, the lot

 

ill be back on this evening but

 

go for the throat

 

WHEN DOES THE AQ NEED TO BE BACK BY

[IdaInFife]

20 th Nov posty

[postggj]

ill do a draft direction to go with the aq tonight or tomorow evening but you must send it to the court by recorded delivery with immediate effect

[just_jue]

Thank you DX & Post for all your help. The AQ needs to be in by the 23rd.

 

JJ

[just_jue]

Hi, does anyone have an email address and name for the managing director of British Credit Trust as they seem to be ignoring my complaint.

 

Thanks

 

JJ