marlin/mortimer claimform - YB Credit Card

[dx100uk]

thread already running is here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/266922-marlin-mortimer-clarke.html

 

troops will be along in the morning.

 

use the search in our blue bar for embar def.

 

i dont think you have to sar etc

 

there is a way to make them submit the docs they are relying upon immed without a charge

 

not really my game sorry

 

dx

[BankFodder]

Why have you left this so late?

 

File an acknowledgment of service immediately and that will get you 14 days extra time to deal with your defence. Don't put your head in the sand.

When you have filed your acknowledgment, then post a bit more detail on this thread so that you can get some proper help

[rebel11]

Hi Unicorn

 

http://www.tradingstandards.gov.uk/wirral/countycourt/n9.pdf

[Guest unicorn4321]

dx100uk thank you for adding the link to my other thread.

 

bankfodder and rebel11 i have already filed an aos i have until 01/08/10

to submit my defence but as this is the weekend am i right in assuming it will have to be in for 30/07/10 at the lates.

[rebel11]

Hi unicorn,

 

It might be an idea to click the red triangle on the left, leave a message for the site team, otherwise your not going to meet the deadline.

[Docman]

Hi unicorn

 

First, I think you need to get your threads merged or details could get lost.

 

Second, you need to file a defence online that deals with three main points:

1. The agreement

2. The Default Notice; and

3. The assignment.

 

Clearly, MC's are playing (?) at being idiots, so I suggest you just hit back in your defence. Do not admit anything in their POCs but put them to strick proof on all three points.

[Docman]

Uni

 

Are you drafting a defence?

 

Doc

[Guest unicorn4321]

Hi docman yes i am having a go at one hoping to get it done tonite so i can post it on here

[Guest unicorn4321]

hi when i file my defence do i have to put in that the default notice is faulty as the dates to rectify the breach were wrong would i also have to send a copy of the dn to the court.

 

i have also been advised to send an unlawful rescission to the oc and mc

but is it too late to do this as my defence has to be in for friday

[Docman]

Yes, you should put in about the DN in your defence but don't worry about the other points yet. Post up a draft defence if you want any advice.

[Guest unicorn4321]

hi could someone please check my embarrassed defence to see if it is ok i need to file this asap

 

Between

XXXXXXX - Claimant

 

and

 

XXXXXXXX - Defendant

 

-----------------------------------------------------

 

DEFENCE

 

-----------------------------------------------------

 

1. I XXXXXX of XXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by XXXXXXXX

 

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

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters:

 

a) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been received despite making a request using CPR31.14 on the 12/07/2010 and on the 27/07/2010

 

 

4.a) A Default Notice was received by the Defendant. The Default Notice issued by the original creditor namely Clydsdale Bank Plc trading as Yorkshire Bank ("CYRB") was dated 20/03/2008. It is submitted that the Default Notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

b) The Default Notice supplied by CYRB was dated 20/03/2008 with date of service being 26/03/2008. The date to remedy the Default Notice was stated to be before the 06/04/2008 thereby only giving the Defendant 10 clear days to remedy the alleged breach.

 

c) In view of 14 days clear notice after service not being given, it is submitted that the Default Notice is invalid. 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 was also an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but also providing the Defendant with a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

d) CYRB did not seek to remedy their Default Notice and further terminated the account by instructing their solicitors to recover the full balance of afore mentioned account. or should this be default

 

5. It is therefore the Defendant's case that as the Claimant’s failed to issue a valid Default Notice subsequent unlawful termination of the account – the Claimant has no right of action and the Claimant’s case cannot succed

6 a) The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims intrest

pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

b) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

7. Consequently, I deny all allegations in the particulars of claim and put the claimant to strict proof thereof.

8. The Defendant denies that the Claimant is entitled to any of the relief claimed or at all.

9. The Defendant respectfully requests the leave of the court to amend this defence if and when the Claimant provides sufficient information for the Defendant to do so

 

I xxxxxx believe the facts contained in this defence to be true

 

 

 

thank you

[citizenB]

 

d) CYRB did not seek to remedy their Default Notice and further terminated the account by instructing their solicitors to recover the full balance of afore mentioned account. or should this be default

 

I am not sure what you mean by .. CYRB did not seek to remedy their Default Notice"

 

Have a read of the defence that has been specifically drafted for a dodgy default notice and see if there is anything you can use. Posts courtesy of steven4064 and 42man.

 

If you are going to use anything from the following, ensure that it has been amended to suit your circumstances ie dates etc. Do NOT use abreviations in your defence ie CYRB. You should either use the whole name or if they are the claimaint.. say Claimant.

 

 

I have been dealing with a few of these of late where the DN is clearly invalid, usually because they haven't given the debtor the statutory 14 days to remedy.

 

I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

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,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

You should submit a defence based on the same argument but then ask for a strike out with the aq. That way, there is no need to make an appliaction and shell out £40.

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. 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.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. 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).

 

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

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(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 -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[citizenB]

If you wish to go with the defence below, I have amended slightly. I also note in respect of a previous comment that CYRB are not the claimant. So just put their full name.

 

 

 

hi could someone please check my embarrassed defence to see if it is ok i need to file this asap

 

Between

XXXXXXX - Claimant

 

and

 

XXXXXXXX - Defendant

 

 

-----------------------------------------------------

 

DEFENCE

 

-----------------------------------------------------

 

1. I XXXXXX of XXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by XXXXXXXX

 

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

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters:

 

a) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been received despite making a request using CPR31.14 on the 12/07/2010 and on the 27/07/2010

 

 

4.a) A Default Notice was received by the Defendant. The Default Notice issued by the original creditor namely Clydsdale Bank Plc trading as Yorkshire Bank ("CYRB") was dated 20/03/2008. It is submitted that the Default Notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

b) The Default Notice supplied by CYRB was dated 20/03/2008 with date of service being 26/03/2008. The date to remedy the Default Notice was stated to be before the 06/04/2008 thereby only giving the Defendant 10 clear days to remedy the alleged breach.

 

c) In view of 14 days clear notice after service not being given, it is submitted that the Default Notice is invalid. 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 was also an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but also providing the Defendant with a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

d) CYRB then terminated the account by instructing their solicitors to recover the full balance of afore mentioned account. (amended slightly)

 

5. It is therefore the Defendant's case that as the Claimant’s failed to issue a valid Default Notice subsequent unlawful termination of the account – the Claimant has no right of action and the Claimant’s case cannot succeed.

 

6 a) The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims intrest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

b) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

7. Consequently, I deny all allegations in the particulars of claim and put the claimant to strict proof thereof.

 

8. The Defendant denies that the Claimant is entitled to any of the relief claimed or at all.

 

9. The Defendant respectfully requests the leave of the court to amend this defence if and when the Claimant provides sufficient information for the Defendant to do so

 

I xxxxxx believe the facts contained in this defence to be true

 

 

 

thank you

 

BTW, did you keep the envelope the Default Notice arrived in ?

[Docman]

First of all, delete the reference to CPR 16 “and does not comply or even attempt to comply with CPR part 16” in paragraph 3. CPR7 provides an exemption for Northampton cases to produce the documents with the claim form as required by CPR 16. Small but MC will make a point with it to your disadvantage.

 

Second, you need to explain why a signed credit agreement containing all the prescribed terms is needed by inserting at something like

 

"The Requirements of the Consumer Credit Act 1974

2. An agreement regulated by the Act must besigned in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature. [s61]

3. Under S61 of the Act, any agreement regulated by the Act must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

4. The Prescribed Terms must be within the agreement for it to be compliant with s60 (1) and not in a separate document [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

5. Further, by S65 (1) if an agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order.

6. By S127(3) of the Act, the Court may not make an order under s65(1) if s61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under S60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

7. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords case Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraphs 28 & 29

“28.….Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in para (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable (see Sch 6 to the Consumer Credit (Agreements) Regulations 1983, SI 1983/1553). The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court (s 65(1)). Section 127(1) provides what is to happen on an application for an enforcement order under s 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under s 127(1) are subject to significant qualification in two types of cases. The first type is where s 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 (s 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. “

8. The claimant has not supplied a copy of the Agreement upon which the claimant bases this claim. It is averred that until such time as the claimant supplies the Agreement containing all the prescribed terms and duly signed by both creditor and debtor, the Court may not make an enforcement order. "

 

Thirdly, I agree with CB’s comments about the DN. If you received a DN, admit that you did receive it on xx DATE (can you prove that?) and then show that (a) 14 clear days are required and (b) state that the DN does not conform with the requirements.

 

Fourthly, CYRB are not the claimant, ‘Marlin Europe 1 Limited’ is the claimant so make sure you tie the correct name to the correct action [CYRB issued the DN etc]. Are you sure it was assigned to Marlin and do you accept that as a fact? You could question the assignment by inserting something like

 

“NOTICE OF ASSIGNMENT

1. The Defendant neither admits nor denies the Claimant’s statement that the Account was assigned to the Claimant but puts the Claimant to strict proof thereof.

2. In respect of that which is denied, the Defendant asserts that in effecting statutory assignment fromCYRB to the Claimant, explicit Notice of Assignment must be given by writing under the hand of the assignor as required by S 136(1) of the Law of Property Act 1925, [the LPA 1925].

3. Further, the Defendant asserts that by failure of a Notice of Assignment to be accurate, the legal right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169].

4. 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 the Defendant by a registered postal service pursuant to s 196(4) LPA 1925 before court action is commenced.

5. The Defendant denies any valid notice of assignment of the alleged debt to the Claimant was sufficiently served on the Defendant and so the Claimant has no right of action. “

 

Finally, make sure all the paragraphs are numbered correctly and in sequence and then ASK YOUR OH (OR SOMEONE YOU TRUST) TO READ THE DOCUMENT SO SEE IF IT MAKES SENSE. i don't mean to test the legal bits, just to make sure there are no glaring errors.

 

best of luck

 

Doc

[Guest unicorn4321]

would i have to put in that this was an easter weekend

[dx100uk]

wont hurt

its working days for postage [2 for 1st...4 for 2nd]

then 14 calander days from that.

and it nust be a WRITTEN date in the DD/MM/YYYY

format NOT a must be paid in XX days reference.

 

dx

[Guest unicorn4321]

ok redone as i dont have oh would you kindly check then its ready to go:

Between

XXXXXXX - Claimant

 

and

 

XXXXXXXX - Defendant

 

-----------------------------------------------------

 

DEFENCE

 

-----------------------------------------------------

 

1. I XXXXXX of XXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by XXXXXXXX

 

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

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised .In this regard I wish to draw the courts attention to the following matters:

 

a) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been received despite making a request using CPR31.14 on the 12/07/2010 and on the 27/07/2010

 

"The Requirements of the Consumer Credit Act 1974

b). An agreement regulated by the Act must besigned in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature [s61]

c) Under S61 of the Act, any agreement regulated by the Act must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of intrest; and repayment terms.

d) The Prescribed Terms must be within the agreement for it to be compliant with s60 (1) and not in a separate document [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

e) Further, by S65 (1) if an agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order.

f) By S127(3) of the Act, the Court may not make an order under s65(1) if s61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under S60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

g). I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords case Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraphs 28 & 29

"28.….Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in para (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable (see Sch 6 to the Consumer Credit (Agreements) Regulations 1983, SI 1983/1553). The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court (s 65(1)). Section 127(1) provides what is to happen on an application for an enforcement order under s 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under s 127(1) are subject to significant qualification in two types of cases. The first type is where s 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 (s 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. "

h). The claimant has not supplied a copy of the Agreement upon which the claimant bases this claim. It is averred that until such time as the claimant supplies the Agreement containing all the prescribed terms and duly signed by both creditor and debtor, the Court may not make an enforcement order

 

4.a) A Default Notice was received by the Defendant. The Default Notice issued by the original creditor namely Clydsdale Bank Plc trading as Yorkshire Bank was dated 20/03/2008. It is submitted that the Default Notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

b) The Default Notice supplied by Clydsdale Bank Plc trading as Yorkshire Bank was dated 20/03/2008 with date of service being 26/03/2008.Due to the fact it was an easter weekend. The date to remedy the Default Notice was stated to be before the 06/04/2008 thereby only giving the Defendant 10 clear days to remedy the alleged breach.

 

c) In view of 14 days clear notice after service not being given, it is submitted that the Default Notice is invalid. 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 was also an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but also providing the Defendant with a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.)

　

d) Clydsdale Bank Plc trading as Yorkshire Bank then terminated the account by instructing their solicitors to recover the full balance of afore mentioned account

 

5. It is therefore the Defendant's case that as Clydsdale Bank Plc trading as Yorkshire Bank failed to issue a valid Default Notice subsequent unlawful termination of the account – the Claimant has no right of action and the Claimant’s case cannot succed

 

6 a) The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims intrest

pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

b) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

7. Consequently, I deny all allegations in the particulars of claim and put the claimant to strict proof thereof.

8. The Defendant denies that the Claimant is entitled to any of the relief claimed or at all.

9. The Defendant respectfully requests the leave of the court to amend this defence if and when the Claimant provides sufficient information for the Defendant to do so

 

I xxxxxx believe the facts contained in this defence to be true

many thanx

[MARTIN3030]

ok redone as i dont have oh would you kindly check then its ready to go:

Between

XXXXXXX - Claimant

 

and

 

XXXXXXXX - Defendant

 

-----------------------------------------------------

 

DEFENCE

 

-----------------------------------------------------

 

1. I XXXXXX of XXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by XXXXXXXX

 

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

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised .In this regard I wish to draw the courts attention to the following matters:

 

a) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been received despite making a request using CPR31.14 on the 12/07/2010 and on the 27/07/2010

 

"The Requirements of the Consumer Credit Act 1974

b). An agreement regulated by the Act must besigned in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature [s61]

c) Under S61 of the Act, any agreement regulated by the Act must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of intrest; and repayment terms.

d) The Prescribed Terms must be within the agreement for it to be compliant with s60 (1) and not in a separate document [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

e) Further, by S65 (1) if an agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order.

f) By S127(3) of the Act, the Court may not make an order under s65(1) if s61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under S60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

g). I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords case Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraphs 28 & 29

"28.….Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in para (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable (see Sch 6 to the Consumer Credit (Agreements) Regulations 1983, SI 1983/1553). The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court (s 65(1)). Section 127(1) provides what is to happen on an application for an enforcement order under s 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under s 127(1) are subject to significant qualification in two types of cases. The first type is where s 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 (s 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. "

h). The claimant has not supplied a copy of the Agreement upon which the claimant bases this claim. It is averred that until such time as the claimant supplies the Agreement containing all the prescribed terms and duly signed by both creditor and debtor, the Court may not make an enforcement order

 

4.a) A Default Notice was received by the Defendant. The Default Notice issued by the original creditor namely Clydsdale Bank Plc trading as Yorkshire Bank was dated 20/03/2008. It is submitted that the Default Notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

b) The Default Notice supplied by Clydsdale Bank Plc trading as Yorkshire Bank was dated 20/03/2008 with date of service being 26/03/2008.Due to the fact it was an easter weekend. The date to remedy the Default Notice was stated to be before the 06/04/2008 thereby only giving the Defendant 10 clear days to remedy the alleged breach.

 

c) In view of 14 days clear notice after service not being given, it is submitted that the Default Notice is invalid. 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 was also an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but also providing the Defendant with a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.)

　

d) Clydsdale Bank Plc trading as Yorkshire Bank then terminated the account by instructing their solicitors to recover the full balance of account.

 

5. It is therefore the Defendant's contention, that Clydsdale Bank Plc trading as Yorkshire Bank failed to issue a valid Default Notice resulting in unlawful termination of the account therefore the Claimant has no cause of action and the Claimant’s case cannot succed

 

6 a) The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest

pursuant to section 69 of the County Courts Act, 1984 which the Claimant should be reasonably expected to know, they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

b) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

7. Consequently, the Defendant denies all allegations in the particulars of claim and put the claimant to strict proof thereof.

8. The Defendant denies that the Claimant is entitled to any of the relief claimed or at all.

9. The Defendant respectfully requests the leave of the court to amend this defence if and when the Claimant provides sufficient information for the Defendant to do so

 

I xxxxxx believe the facts contained in this defence to be true

[Guest unicorn4321]

DONE defence in :D

 

Can i just say a big thank you to all who have helped me if i had not found this site i would not have had the nerve to stand up to these bullies.

 

And after having so many sleepless nights worrying and even contemplating moving house the relief is just fantastic and looking back now it really wasn't as scary as i first imagined.

 

So if anybody is having any doubts about fighting back get stuck in, the people on here are so freindly and very helpful.Once again thank you and i will be donating.

 

Can't wait for round two BRING IT ON :p

[MARTIN3030]

Unicorn -have been given further info for consideration;

 

 

 

 

 

the Default notice is a red herring as the case of Brandon v Amex is in the Court of Appeal currently, and the High Court said the failing to give 14 days means nothing, so that is a valid high court judgment at this moment therefore, game over

 

Also no positive assertion as to the document that was signed so liable to be struck out ( see Sternlight)

 

 

Carey made it clear that there must be a positive allegation if the agreement is improperly executed.

 

HHJ Platt said in HFO and Patel the Defendant MUST plead the specific breaches of the specific regulations if he wishes to argue improper execution

 

HHJ Denyer QC in Brandon said that the Defective default notice which was allowing less than 14 days was de minimus and did not matter, also did not bar the creditor from recovery

 

 

Courtesy of Pt

[Guest unicorn4321]

hi all

have i done a stupid thing !

filed an embarressed defence in july 10.

i had already sent a sar to yb bank on 9/7/10,sent twice as refused first time received this 6/8/10 only statments from 8/04 to 6/08 plus some computer printouts even though acc ran from 97, no dn or assignment notice.

also sent a cpr 31.4 request to mc solicitors at same time also refused first time,then sent a civil procedure rules letter as advised in july 10.

received docs from mc 22/10/10 there letter dated 13/10/10 containing what looks like an application form dated 6/6/97 ( their poc says agg signed 11/06/97 by the way) the dn, copies of unsigned assignment letters from yb and mc on a4 paper no letterheads,stats from 12/07 to 6/08 and a tomlin order.

received a letter from court 10/2010 that the claiments time for aq was extended till 11/10.

then due to personal problems i forgot about it till i received letter from court on 14/2 11 stating that it appears the claiment has complied with my request and ordering me to file a fully particularised defenceby 23/2 or defence be struck out .

do i file another embarressed defence stating mc have not complied as they have not sent a true copy of the original agreement or t and c's no full statment of acc nor a true signed copy of the assignment (which by the way they can not do as they were never signed i have the originals).

any advise would be greatly appreciated thanks in advance

[Docman]

Was your original 'embrassed 'defence taken from CAG?

 

Has the claimant now filed an Amended Particulars of Claim? If so, you will have to answer the points raied in the claim. If not, you will have to file a defence answering the points from teh original N1 claim form but rebut the documents they have since supplied.

[Guest unicorn4321]

hi docman

yes my embarrassed defence was from cag,no they have not sent me a new poc form.

 

can i use my original embarressed defence but amend it.

 

thanks

[Docman]

Your Amended Defence must deal with all the issues raised in the original POC AND any documents that have been supplied to you.

[Guest unicorn4321]

right thank you docman i will have a go at it tonite,

by the way do the notices of assignment have to be signed?

thanks