marlin/mortimer claimform - YB Credit Card

[Docman]

OK, look forward to seeing the amended defence.

 

As to the NOA, it does not have to be signed. All that is needed is that it is in writing, that it is accurate in the facts stated and that it draws your attention that the debt has been sold to another party.

[Guest unicorn4321]

ok will post defence when done

[Guest unicorn4321]

hi could someone please check my defence this has to be in by 4pm wed the red highlights are some im not sure about

 

 

Between

xxxxx - Claimant

 

and

 

xxxx- Defendant

 

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

 

DEFENCE

 

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

1. I, xxxx xxxxx, am the defendant in this action and make the following statement as my amended defence to the claim made by Marlin Europe1 Ltd and except where explicitly stated below, the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

2. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to provide the written agreement which formed the basis of this claim despite properly executed requests under the Civil Procedure Rules.

3. On xxxx also on xxxI requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibits 1 & 2 ). I requested the claimant supply this information within 7 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

 

4. The claimant failed to supply the requested information within the requested time frame so accordingly I could only file an embarressed defence. However, the claimant has now supplied some of the requested information (see Exhibits 3,4,5,&6) and after consideration of the supplied documents I can now make a fully particularised defence to the claimant’s Particulars of claim

 

.5. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimant’s particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof

 

 

6. The credit agreement the claimant refers to has not been supplied but has been substituted with an illegible application form which is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) for the reasons set out below in this defence and as a consequence it is unenforceable

　

"The Requirements of the Consumer Credit Act 1974

a). 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]

b) 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.

 

c) 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].

 

d) 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.

 

e) 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).

 

f). 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. "

 

g). 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

 

h)The claimant states in their particulars of claim the agreement was signed on the xxx, the application form clearly states

xxx 5 days later

 

7.a) A Default Notice was received by the Defendant. The Default Notice issued by the original creditor namely Clydsdale Bank Plc trading asYorkshire Bank was dated xxx. 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 xxxxx with date of service being xxx. Due to the fact it was an easter weekend. The date to remedy the Default Notice was stated to be before the xxx 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.

 

8. 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 succeed.

 

9. 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;

　

10) The defendant also requested copies of the terms and conditions relevant to the alledged agreement as well as a true copy of the deed of assignment,termination notice and a full statement of the account as refered to in the claimants particulars of claim.

 

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

 

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

 

13. 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

 

the red highlights are some im not sure about

many thanks

Edited February 21, 2011 by unicorn4321
dates left on

[Docman]

You have not stated the deficiencies in the application form other than a reference to a different date.

[Guest unicorn4321]

hi docman im sorry i thought i had here

 

6. The credit agreement the claimant refers to has not been supplied but has been substituted with an illegible application form which is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) for the reasons set out below in this defence and as a consequence it is unenforceable

 

　g). 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

 

should i make another reference that there are no terms and conditions with the form and to the fact i sent a s78?

[cymruambyth]

I included the following in my defence, you could amend it to suit your situation.

 

 

7. The credit agreement supplied, which is called ‘A Short Application Form’ is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) for the reasons set out below in this defence and as a consequence it is unenforceable.

 

8. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

9. 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).

 

10. 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.

 

11. It is submitted 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. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. A copy of terms and conditions was forwarded by on. This is a separate document headed Terms and Conditions with a reference number hand written on the first page. In the Particulars of Claim reference is made to ‘the terms of an agreement’. There are no terms and conditions attached to the Short Application Form; the prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974.

[Guest unicorn4321]

thank you cymruambyth

will do that

just noticed that on the application form all the writing apart from the signitures is faded and barely legiable

 

also i have a com printout that statas the sale took place on 17/9 not 18/9 only one day earlier but will it make a difference

thanks for your help

[Guest unicorn4321]

hi i have amended my defence which i hope is ok

also re the question above will it make any difference that there is one day difference between the dates of the assjgnment

 

Between

 

xxxx- Claimant

and

xxxxx- Defendant

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

DEFENCE

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

1. I, xxx, am the defendant in this action and make the following statement as my amended defence to the claim made by xxx and except where explicitly stated below, the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

2. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to provide the written agreement which formed the basis of this claim despite properly executed requests under the Civil Procedure Rules

3. On 09/07/2010 also on 21/07/2010 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibits 1, 2 & 3). I requested the claimant supply this information within 7 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

4. The claimant failed to supply the requested information within the requested time frame so accordingly I could only file an embarressed defence. However, the claimant has now supplied some of the requested information (see Exhibits 4,5,6&7) and after consideration of the supplied documents I can now make afully particularised defence to the claimant’s Particulars of claim

.5. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimant’s particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof

6. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16, paragraph 7.3.

 

7. The defendant respectfully requests the amendment of this defence if such paperwork is presented to the court..

8. The credit agreement the claimant refers to has not been supplied but has been substituted with an illegible 'Short Application Form' which is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) for the reasons set out below in this defence and as a consequence it is unenforceable

9. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

10. 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).

11. 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.

 

12..In the Particulars of Claim reference is made to ‘upon the terms & conditions set out therein' . It is submitted 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. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

13. The claimant states in their particulars of claim the agreement was signed on the 11/06/1997, the application form clearly states 06/06/1997 which is 5 days earlier.

14.a) A Default Notice was received by the Defendant. The Default Notice issued by the original creditor namely Clydsdale Bank Plc trading asYorkshire 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 which 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.

15. 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 succeed.

16. 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;

17) The defendant also requested a true copy of the deed of assignment,termination notice and a full statement of the account as refered to in the claimants particulars of claim with which the claimant has not complied with

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

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

20. 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 xxxbelieve the facts contained in this defence to be true

　

　

　

　thank you for taking the time to help me

Edited February 23, 2011 by unicorn4321

[Guest unicorn4321]

hi everyone

 

am i stupid ? this is a link to my previous thread not sure if it works ?

 

just received a letter from court allocated smal claims track but saying judge thinks mediation will be suitable.

 

also recieved another letter from court saying they had been contacted by claimant who would be flexibale in trying to resolve this case and avoid court hearing date.

 

my question is there any point to this or are they just stalling ?

 

also should i have received any correspondense that they had sent to the court as i have sent my aq in and my defense which i asume they will have a copy of but not got anything about what they have told the court?

 

sorry for all the questions but never done this before.

 

many thanks

[cymruambyth]

They should but don't always send a copy of their AQ, if you write to them they usually supply it.

Mediation, if directed by court, go along with it, but be careful about the information that you disclose, it could be a fishing exercise to find out your arguments

[Guest unicorn4321]

thank you cymruambyth will give the court a ring monday

[Guest unicorn4321]

just a quick question if any one can advise please

 

is it legal for the oc to sell my account to a dca if they have issued a faulty dn.

 

thanks

[DonkeyB]

Yes, they can sell it at any time, irrespective of the account’s status – as long as the assignor or assignee complies with the provisions of the Law of Property Act 1925 and advises you accordingly.

[diddydicky]

if they have sold the debt to marlin- then marlin have bought the dodgy DN as well!! silly billies

 

nice to see the creditors ripping the dca's off as well as us!

[Guest unicorn4321]

hi diddydicky had a good laugh at that :-D

 

never looked at it like that,

 

wondered why they were offering me deals to reduce the debt like tomlin order and now mediation?

 

will speak with the med bloke and see what they are offering now

 

many thanks

[Guest unicorn4321]

hi i have a faulty dn on an argos card got the dn in 2008,

 

is it too late to accept ur on this now

 

have had a look on here but can't find an answer

 

thanks

[DonkeyB]

... except that in theory, if they had their wits about them, Marlin could issue a compliant DN. Best not to remind them...

 

...technically, the account is still ‘live’, I suppose.

[Peterbard]

hi i have a faulty dn on an argos card got the dn in 2008,

 

is it too late to accept ur on this now

 

have had a look on here but can't find an answer

 

thanks

 

Accepting the terminatioon will do you no good i am afraid

 

If you have a defective DN you can use it to challenge the enforcement,should it happen

 

Peter

[Guest unicorn4321]

hi donkeyb

no don't think it is as they have issued court papers and now got to stage of allocated to sct but judge thinks should try mediation,

 

does that mean the account is dead

thanks

[DonkeyB]

Well, if they are trying to enforce on the back of a dodgy DN... they can not.

 

Harrison v Link Financial – see here:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?296622-Harrison-vs-Link-Financial-Limited-High-Court-judgment&p=3332163&highlight=#post3332163

 

But it should have been in your defence. Was it?

[diddydicky]

if your defence was submitted before this ruling became know a couple of weeks ago- then i think you could apply to amend your defence to take account of it

[diddydicky]

what is faulty about the DN?

[Guest unicorn4321]

hi diddydicky

its says action required to remedy payment of the total arrears of £xxxx within 14 days of receiving letter

thanks

[diddydicky]

did you keep the envelope?

 

.....are you sure it doesn't say "within 14 days of the date of this letter"?

 

 

if it says "within 14 days of receving this letter" its tricky because of course it lets YOU decide when you received it and so could have given yourself 14 days

 

very sneaky and a new on on me if that is what it really says

 

i would post it up and let us have a look at the whole thing (minus personal details)

[Peterbard]

Hi

It would be in your best interest to have a look here before following any advice to accept a termination

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?257032-RBS-Mint-Loan-Court-Action-Started-amp-Dodgy-DN-issues/page13

 

Peter