MKRR/Keynes Claimform - old Goldfish card

[Marino13]

Andy,

I am working on the text for my defence, which I will post up when finished, but can I ask a quick question about the 'letter before action'. Does it have to take a specific format?

All i received (after 1 letter in 12 months) was a letter from Keynes Collections (who I had had no dealings with, but claimed that MKRR were their clients) on 31/1/2013 which stated:-

 

we recently wrote to you (they didn't) advising you your overdue balance has been referred to us for litigation assessment. Should we not hear from you within 7 days we may decide to seek a County Court Judgement If successful, blah blah....is that enough to be a proper letter before action? is it relevant that MKRR are the DCA named on the PoC, yet Keynes Collections sent that letter

 

not sure if I should mention this in my defence. Appreciate your view (or anyone else's!)

[AndyOrch]

If you just make reference within your defence that he Claimant has failed to comply with the pre action protocol PDs and I will tweak it to legalise.

[Marino13]

This is very much a cobbled together 'embarrassed defence', from one that I used before but I have removed sections that are not relevant this time round. Not sure if it would be perceived as too much information, as I know some advocate just two lines of text

I am happy to make any amendments that the more experienced of you (especially andyorch, who has been a great help) think relevant. I'll obviously add in the personal details later.

 

 

 

 

1. I am the defendant in this action and make the following statement as my defence to the claim made by MKDP LLP.

 

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 Procedures 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 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 the 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. Further more the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice

 

8. 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 particularize 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

 

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

 

 

Pre-action protocols

 

10. The claimant MKDP LLP has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation.

 

 

 

The Request for Disclosure

 

 

11. Further to the case, on 25 February 2013 I requested 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, to rely on, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

12. 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

 

13. 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

 

 

15. 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

 

16. 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)

 

17. 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

18. 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

 

19. 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

 

20. 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).

21. 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

 

22. 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."

 

23. 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

 

24. 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

 

25. It is neither admitted or 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

 

26. 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)

 

27. 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

 

 

The Assignment of the debt

 

28. As stated in point 7, claimant had instigated this action, consequently, I require the claimant produce the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925

 

29. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the notice of assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the claimant to strict proof that the assignment has been carried out correctly

 

30. If no Deed of Assignment can be produced it is requested that the court strike out the claimants’ case as the claimant will not have a right to bring this action against me in their name

 

Conclusion

 

31. 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

 

32. 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

 

33. 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

 

34. 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 courts permission to amend my statement of case accordingly.

 

35. 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.

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

[AndyOrch]

Bit lengthy Marino but very concise ...would make an excellent Witness Statement should this matter proceed.

 

Just bringing your P.O.C forward for reference:-

 

POC:-

 

The claimant claims the sum of xxx being monies due from the defendant to the claimant under a regulated agreement between the defendant and Barclaycard. The defendants account number was xxxxxx and was assigned to the claimant on , notice of this has been provided to the defendant. The defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the CCA 1974.

The claimant claims the sum of xxx and costs. The claimant has complied, as far as is necessary, with the pre-action conduct practice direction

[Marino13]

thanks andy, think its ok to submit as is, or should I cut some bits to hold back for the witness statement? I didn't want to give the DJ any excuse to throw the defence out, so thought the more points of contention I pointed out, the better....

[AndyOrch]

The problem with fully particularised defences at the first hurdle is that you show all your hand/argument and retain nothing for when they counter...a defence should refute or agree the points only raised in their Particulars....if they have not raised it you dont answer it.

 

Regards

 

Andy

[Marino13]

Andy, took your advice on board and thought that perhaps I'll save that more detailed defence for later if it is needed..what do you think of this shorter version:-

 

In the Northampton (CCBC) County Court

 

Claim number XXXXXXXX

 

Between

 

MKDP = Claimant

 

and

 

Me – Defendant

 

DEFENCE

 

1. I xxx am the defendant in this action and make the following statement as my defence to the claim made by MKDP.

 

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. 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. (Even allowing for the constraints of the bulk issue system)

 

4. No documents supporting the claim in the particulars have been offered nor have any dates of agreement been stated which the defendant needs to establish what agreement it is that this action is based upon and so the claimant's claim appears without merit.

 

5. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I am at a disadvantage to respond to this claim and to allow me to properly respond to the claim.

 

6. It is denied that I have an agreement with MKDP.

 

7. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

8. The claimant has failed to supply a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974. I do not have in my possession any such notice and am therefore unable to comment thereon. The Claimant is put to strict proof as to the date of service of such notice.

 

9. If the Claimant is the Assignee and there has been an Assignment, the Claimant fails to plead as such and it is contended that no such Notice of Assignment pursuent to the Law of Property Act 1925 has ever been recieved. Without a Notice of Assignment, the Assignment is merely equitable and the Claimant is put to strict proof to disclose this and proof that this claim can commence in their own name

 

10. Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

 

AND the Defendant

 

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

 

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

 

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

Statement of Truth

 

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

 

 

Signed

 

Me

 

Defendant

[AndyOrch]

[Marino13]

Hi all,

 

been off quietly dealing with life, and various creditors (recently had a nice win against Barclays)

but have been having trouble with one creditor.

 

I received a Northampton bulk centre form back in Feb, and I submitted an 'embarrassed' defence, requesting certain docs be sent to me.

They never were, and things went quiet. I assumed I had scared them off.

 

Well, a couple of days ago I received a 'Notice of Hearing of Application', to be heard in my local court.

Attached was a photocopy of the 'Application notice', when back in July the creditor had applied for an order to lift the stay, without a hearing.

I assume the court officer was the one that ordered there WOULD be a hearing?

 

The flimsily claim that due to an 'administrative error' they did not respond in time (which, as you suspect, is absolute rubbish.

They had weeks to reply to both the court and to my personal letters, and chose to respond to none) and now wish to file an AQ/ Directions.

 

Now, is this hearing something I need to attend?

is it between the claimant and the judge to decide?

Could I submit a written objection?

Not familiar with this at all so would appreciate the help of anyone who is up to speed.

 

To my mind, the original problem remains, they failed to supply any of the docs I requested and I asked if they could not for the case to be thrown out.

Should I make the same requests again, or keep my powder dry?

 

As I say, any help/ direction/ advice on what to send would be gratefully received.

[Ganymede]

I would attend if you want to dispute their application. If you don't the DJ willprobably just allow it.

[Marino13]

Thanks for the reply. Wasn't sure if I defended it in the traditional sense.

 

I assume the DJ will allow the application whatever I do, and just expect me to defend again, as I originally did.

 

I was wondering if I could just submit a written statement asking that if their application is allowed,

could it be subject to them supplying the required documents within 14 days, something like that.

 

They've had several months after all, and I suspect the reason they've reappeared is they have at least some bits of paper they feel may be enough.

[unclebulgaria67]

Thanks for the reply. Wasn't sure if I defended it in the traditional sense.

I assume the DJ will allow the application whatever I do, and just expect me to defend again, as I originally did. I was wondering if I could just submit a written statement asking that if their application is allowed, could it be subject to them supplying the required documents within 14 days, something like that. They've had several months after all, and I suspect the reason they've reappeared is they have at least some bits of paper they feel may be enough.

 

As has been said, if you don't attend, it will probably go their way. Up to you really. If you attend at least you can combat anything they say in court which is not correct and request that they be held to strict proof, with all relevant documents provided to the court.

[The Mould]

Hi all,

 

been off quietly dealing with life, and various creditors (recently had a nice win against Barclays) but have been having trouble with one creditor. I received a Northampton bulk centre form back in Feb, and I submitted an 'embarrassed' defence, requesting certain docs be sent to me. They never were, and things went quiet. I assumed I had scared them off.

 

Well, a couple of days ago I received a 'Notice of Hearing of Application', to be heard in my local court. Attached was a photocopy of the 'Application notice', when back in July the creditor had applied for an order to lift the stay, without a hearing. I assume the court officer was the one that ordered there WOULD be a hearing? The flimsily claim that due to an 'administrative error' they did not respond in time (which, as you suspect, is absolute rubbish. They had weeks to reply to both the court and to my personal letters, and chose to respond to none) and now wish to file an AQ/ Directions.

 

Now, is this hearing something I need to attend? is it between the claimant and the judge to decide? Could I submit a written objection? Not familiar with this at all so would appreciate the help of anyone who is up to speed.

 

To my mind, the original problem remains, they failed to supply any of the docs I requested and I asked if they could not for the case to be thrown out. Should I make the same requests again, or keep my powder dry?

 

As I say, any help/ direction/ advice on what to send would be gratefully received.

Firstly, when is the date for the hearing of theClaimants’ application to lift the stay?

Secondly, you must respond to this application andyour response in opposing this application must be filed and served within 7days of the hearing set by the Court!

Thirdly, if you have made a request to the Claimantpursuant to CPR Pt 31 rr.31.14 &31.15 for compliance with your statutoryrights of disclosure thereunder and theClaimant has not complied with his obligations to comply with said CPR Pt 31 oninspection and disclosure, then you must raise this important and relevantissue with the judge/master who is hearing the case and make a cross-application(your own N244) for the Court to strikeout of the claim under CPR Pt 3 r3.4(1)©on the condition that if the Court allows the stay to be lifted, that Unless the Claimant complies with your statutory rights under theCPR Pt 31 as regards your letter dated (put date and serve a copy of yourletter with your N244 and witness statement) Request for disclosure within 14days of the Court’s Order to lift the stay, then in default of such, theClaimant’s case shall be struck out without further Order.

You ought to attend the hearing of the Claimant’sapplication to lift stay and proceed to AQ stage of this matter and argue thatyou believe that as Claimant is not willing to comply with CPR Pt 31 and thathe appears to be unable to comply with the same, that you believe a fair trialwill not be possible, the burden of proof is upon the Claimant and that as ofthe date hereof, he has not provided this Court with any tangible evidence tosubstantiate his claim. In thesecircumstances you respectfully repeat your Defence/submissions already filedand served and you consider that the Claimant is battling a case against yourDefence and his obligations under the above-stated CPR that not only is he unable to support but alsounable to advance.

Kind regards

The Mould

[Marino13]

Hi The Mould,

 

That's a great and extremely helpful reply, thanks. Luckily the date set isn't until late October, so plenty of time to get my response in. I did indeed make those requests, which they defaulted on, and did plan on making that point to the DJ, either in written form or in person. I was going to ask that the stay only be lifted if they supplied the documents I requested under the CPR guidelines.

Your reply has confirmed what I was planning to do is the right thing, so thanks!

[AndyOrch]

May be advisable to post the particulars of their claim and the defence you submitted before making any application.Opposing a lifting of the stay is pointless making an application for disclosure pre DQ can be risky.

 

Regards

 

Andy

[Marino13]

Thanks for the input Andy. Do you think the stay will be lifted regardless?

Would the DJ not consider lifting only on condition the CPR requests are met?

 

As I said earlier, the fact they have returned again makes me think they have cobbled together at least a few bits and bobs, which I was going to ask about. Do you think it better to leave that to later? ( as you say, I doubt the DJ will object to lifting the stay so I will have to defend properly then). My previous defence had just been a basic embarrassed one, which I was surprised they never responded to

[AndyOrch]

Yes and no.... because CPR requests are not mandatory..the court cannot (or very rarely ) force disclosure pre AQ...disclosure is set later in the process using the N256.

 

Its really difficult to comment Mario because I have not had sight of their PoC nor your defence in response.

 

Regards

 

Andy

[Marino13]

I did cover the start of all this in a thread several months back, which I've just found again. A certain andyorch was helping me too then...!

 

the POC and my eventual 'embarrassed' defence are both in there. Nothing further was heard until a couple of days ago...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?383070-Hi-all-appreciate-any-thoughts-on-this-court-claim...

[AndyOrch]

Threads merged.

[AndyOrch]

Just proceed assuming the stay is lifted and request any documents within your DQ.(Cheaper than making an application)

[The Mould]

Just proceed assuming the stay is lifted and request any documents within your DQ.(Cheaper than making an application)

 

Agreed, no point in spending money at this early stage. However, you could respond to their app to lift the stay and request that the same be made subject to conditions of the Court, bearing in mind the overriding objectives and request that the stay being lifted is subject to Claimant complying with his obligations under CPR Pt 31 on inspection and disclosure pursuant to your statutory rights under the same in accordance with your CPR Pt 31 Request made pursuant to rr.31.14 & 31.15, which as of the date hereof, the Claimant has failed to comply with.

 

Further, that it is your belief that as the Claimant has not complied with his obligations to give disclosure of documents mentioned by him at this early stage in these proceedings, which is causing frustration to you and is prejudice to your rights in respect of the same, that you believe that the Claimant will continue with the same unreasonable, non-compliant and frustrating conduct through to the trial, therefore, you respectfully request that his application be made subject to this Court's authority to manage these proceedings in accordance with the overriding objectives.

 

The above is my further suggestion in this matter. Please do not feel obligated to follow the same and please do not hesitate to ask any further questions, which I am certain that I and your other fellow CAG members will endeavour to answer, provide advice and our support.

 

Kind regards

 

The Mould

[DonkeyB]

As you were reminding the claimant about your CPR requests, it is hardly a valid claim that they failed to respond because of ‘administrative error’ – you were reminding them a-plenty. My view is that you should oppose on that basis, and make the requests mentioned. To do so at a hearing instigated by them should cost you nowt.

[Marino13]

Thanks for the replies everyone.

The Mould and DonkeyB, I plan to bring up as strongly as I can that they failed to supply any documents to me at all, even failed to respond to several letters and requests. That is not an 'administrative error', and I hope the DJ is sensible enough to see that. They failed to follow procedures, and to reinstate their claim, with no call on them to do anything, would be extremely unfair to my side. I would ask the DJ that the claim be reinstated on the basis that they supply the docs referred to within their POC's within 14 days, or it be struck out/ not allowed to proceed.

I can take along supporting letters etc to show the timeline with them.

 

Seems to me to be a reasonable request considering their behaviour.

[AndyOrch]

Marino I think the point you are missing here the claim is still live...simply stayed....they are not reinstating simply proceeding.Your defence will stand and they will disclose at the appropriate time the DJ directs.

 

The only point the claimant is at fault here is that they have not responded to your defence within the 28 days...hence the claim is stayed.

Not responding to CPR requests is not failing to follow procedure...its their choice and no Court can compel them to.

 

Wouldn't want you to enter into this hearing with the wrong perception.

 

Andy

[DonkeyB]

Thanks for the replies everyone.

The Mould and DonkeyB, I plan to bring up as strongly as I can that they failed to supply any documents to me at all, even failed to respond to several letters and requests. That is not an 'administrative error', and I hope the DJ is sensible enough to see that. They failed to follow procedures, and to reinstate their claim, with no call on them to do anything, would be extremely unfair to my side. I would ask the DJ that the claim be reinstated on the basis that they supply the docs referred to within their POC's within 14 days, or it be struck out/ not allowed to proceed.

I can take along supporting letters etc to show the timeline with them.

 

Seems to me to be a reasonable request considering their behaviour.

 

Yes, it’s not an admin error, of course.

 

But as Andy says, it’s likely the judge will grant the lifting of the stay.

 

What you will be doing is setting out your stall, making it clear to them that you won’t roll over, and letting the judge know that you know what they’re up to. All part of the game.