HPH2/cohen claimform - old tesco Mastercard debt***Settled by Tomlin Order***

[AndyOrch]

Point 5 why did you request a copy of the agreement form a Solicitor ?

[obvious]

@Andyorch That's an editing error on my part. I used another witness statement to draw inspiration from.

 

I sent it to Hoist Portfolio Holding 2 LTD in Jersey and received no response

[obvious]

The date to provide statements is on a Sunday. What does this mean in practice, it being a weekend?

[dx100uk]

it wont hurt to send it Monday to the court by recorded mail

as a LiP [litigant in person] your have certain leeways..

 

else do it fri/sat am

[obvious]

1 day to go till I need to get my statement in (or Monday with leeway at the latest)

 

I woulld really appreciate any and all feedback and suggestions now, especially with regard to my own witness statement which I hope to get some input on before I just cobble it together at the last minute

 

Received this morning their witness statement. I've uploaded the main part of it here. Referenced documents are already uploaded I think in the returns to the CPR31.14 request.

 

I've also attached some pages from their bundle with comments below.

 

Page 2 - Right to cancel. The claimant failed to provide details of the right to cancel as per CCA1974/39/Part V/68 [Exhibit PH1]

 

Page 2- Tickbox. There could be millions of identical pages to this in existence with an anonymous tick in a box so Tesco require that a paper copy is completed and signed (Page 9)

 

 

Page 9 - Paper Application. The paper application which forms the bulk of or at the very least part of the contract was never completed and the claimant has no knowledge of it. Indeed it states that any application is dependent upon it being signed and completed.

 

Page 10 - No signature

 

Tesco have a duty of care and a responsibility to make reasonable effort to check whether an applicant is suitable before approving any application

 

Where are the credit checks?

Where are details of my employment and income etc?

 

Page 68 - Provide evidence that it was legally assigned by Tesco not just a letter from them.

theirwitnessstatement.pdf

their witness statement 2 9 10 and 68.pdf

[AndyOrch]

If they are relying on a signed application...then they will have to disclose a signed application....not sure what they are on about by ticking boxes..this was not an online application ?

 

 

Andy

[obvious]

Sorry Andy those are just my notes.

 

It appears the original application was electronic as per page 2 of their statement.

 

They included an unsigned paper application as part of their bundle (pages 9,10)which I'm thinking of claiming would have originally been sent to me in order to complete the application process.

 

They haven't provided any signed copy.

[AndyOrch]

No its one or the other...there is no signed paper application if its an on line application.

[obvious]

ok folks, I've cobbled a draft witness statement together. Again, thanks for any comments, suggestions, deletions, alterations or ideas

 

IN THE County Court at Claim No.

BETWEEN:

Hoist Portfolio Holding 2 LTD

Claimant

 

AND

Defendant

************

 

_________________________ ________

 

WITNESS STATEMENT OF

_________________________ ________

 

 

I, being the Defendant in this case will state as follows;

 

I make this Witness Statement in support of my defence in the claim.

 

1. The claimant is an Assignee a buyer of defunct or bad debts which are bought on mass portfolios of debt at much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debt (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

2. On or around the 01 August 2018, I received a claim form from the County Court Business Centre, Northampton, for the amount of £5430.00. The claimant contends that the claim is for the sum of £5940.50 in respect of monies owing under an alleged agreement with the account no. xxxxxxxxxxxx pursuant to The Consumer Credit Act 1974 (CCA).

 

3. Contained within the claimant’s particulars the claimant pleads that The Defendant has failed to make contractual payments under the terms of the agreement. There are no details contained within its particulars about when any alleged Default Notice has been served upon the defendant pursuant to S.87(1) CCA. There are no details contained within its particulars about when any alleged Default Notice occurred or the degree of default or details as to how the sums claimed have accrued. The claimant is put to strict proof to evidence details of the default and service of any Default Notice.

 

4. The particulars of claim state the debt was assigned by Tesco Personal Finance PLC (‘Tesco’) to Hoist Portfolio Holdings 2 LTD, R/O First Floor, Le Masurier House, La Rue Le Masurier, St Helier, Jersey, JE2 4YE and that Notices were provided by way of a Notice of Assignment. The claimant is put to strict proof to evidence the details of assignment from Tesco to Hoist Portfolio 2 LTD rather than simply a letter generated by Hoist Portfolio making a bare assertion of assignment (EXHIBIT: AKJ1 p.66) without supporting evidence.

 

5. On 02 August 2018 I made a formal written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT: PH1]. I also enclosed a copy of the letter sent directly to Howard Cohen and Co. requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT: PH2].

 

6. On 02 August 2018 I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974. The Claimant did not respond.

 

7. The Claimant has not provided Notice of Assignment from Tesco to itself only a letter written by themselves claiming to be the creditor. They are put to strict proof to the claim that they have purchased this debt and to provide such NOA from Tesco.

 

8. In response to my CPR31.14 request, The Claimant provided copies of application documents that Tesco provide for new applicants by post that the applicant should complete, sign and return in order to establish the formation of a contract with Tesco and a regulated credit agreement. [EXHIBIT: AKJ1 pp.9-10). It is argued that such documents as provided by The Claimant undermine their case against me as they are neither completed, signed or dated. Why would Tesco send prospective customers blank application forms through the post were it not an implied contract term specified by Tesco that these should be completed and returned in order to form the contract.

 

9. The Claimants pleaded case is that the Defendant entered into an agreement with Tesco under account reference xxxxxxxxxxxx. I am uncertain as to which account this refers to. It is accepted that I have had Credit Cards with Tesco in the past however I have no recollection of the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose this agreement on which it’s claim relies upon.

 

10. Documents [EXHIBIT: AKJ1 pp.9-10 and AKJ1 p.2) in the Claimant’s Witness Statement do not contain any of the prescribed terms as required by section 60(1) Consumer Creditit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, in Schedule 6 Column 2 of SI 1983/1553:

A Amount of credit

A term stating the amount of credit

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

 

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

For a Running Account (credit card) agreement BC and D are applicable.

 

11. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) Consumer Credit Act 1974, which states

 

“127(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).”

 

12. This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is respectfully 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 the agreement cannot be enforced.

 

CONCLUSION

 

13. In the first instance, the Defendant request that the court exercises its discretion to strike out the Claimant’s Claim as the Claimant failed to comply with a Statutory Request under the Consumer Credit Act of 1974, thereby entering into a default situation. The Claimant is not permitted to enforce the agreement whilst the default is in place. Therefore, I maintain this account has become unenforceable at law.

 

14. The Defendant requests that the court exercises its discretion to strike out the Claimant’s Claim as the Claimant has not shown any communication from Tesco to itself assigning the debt via NOA or otherwise.

 

15.The Defendant requests that the court exercises its discretion to strike out the Claimant’s Claim as the Claimant has not shown any completed and signed application as implicitly or explicitly required by Tesco during the application process.

 

16. Alternatively the Defendant requests that no Judgement be entered against him at the hearing fixed for this matter.

 

If the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law and Property Act.

 

As per the CPR Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Until such time the claimant provides such evidence as detailed above it is denied that the claimant is entitled under statute or equity while the default continues, to enforce the agreement pursuant to section 78 of the Credit Consumer Act 1974.

 

 

 

Statement of Truth

 

I, , the Defendant, believe the facts stated within this Witness Statement to be true.

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

[obvious]

Just read your last post @Andyorch

 

I was busy putting stuff together. I'm hoping that by including a blank application form back during the initial process, tesco themselves have added additional requirements for a contract to be formed with them. I thought any number of requirements can be added to a contract if both parties agree, including in this case a requirement mandated by tesco (not by law) that a paper copy be filled in. I'm stretching here...

[AndyOrch]

Early on line applications were normally followed up with a hard copy agreement for the debtor to sign on receipt of their card.It stated quite clearly on the on line application with tick box for signature that a hard copy would be forwarded before any agreement could be executed or used.

 

Having seen the early follow up agreements .....I can assure you it is nothing like the one they disclosed...which is simply a flyer type application found in magazines and given out at retail outlets.

[obvious]

OK, understood. I'm running out of hope here to be honest. Large parts of my 'witness statement' mean nothing to me. I've just plucked stuff from the forum.

 

You and @dx100uk have been great but it does look like this thread is finally running out of steam. I guess there's only so much help you can give when it's this dire. Should I even bother with a witness statement?

 

I think I'll write a letter to the Claimant and copy in the solicitor detailing my sorry financial circumstances etc. Maybe they'll feel like they're throwing good money after bad.

[dx100uk]

Your doing fine

Nothing to lose wont cost you more even if you lose

 

My thoughts

[obvious]

 

Cheers. While I've got you, is there anything that blatantly needs correcting etc?

 

I appreciate you deal with this stuff all the time, are doing it for nothing, there's only so much you can do and it's an awful lot to read through.

[dx100uk]

I dont ..i deal but andy is the master

 

But ill have a read later

Monday is ok to send it

[AndyOrch]

You must submit a witness statement and file your disclosures as per the court directions.....you risk your defence being struck out for none compliance...also you would have nothing to rely on in support of your initial defence and would only be allowed to give give verbal evidence.....which obviously is pointless.

 

The statement above is fine...a little too wordy and repetitive in points...stick to salient points and dont try to bolster it with unnecessary paragraphs you have added from your initial defence.

 

The lack of agreement is key here and the most powerful point of your statement...concentrate on that.

 

I will highlight points on the statement in blue that I would lose.

 

Point 8 requires attention...emphasis must be placed on the none compliance of your section 78 request...not a CPR 31.14.

 

Andy

[obvious]

I've removed sections in blue, removed emphasis from point 8 re the unsigned paperwork, checked for consistency and readability and added an introductory paragraph about myself.

 

I'm not sure exactly where to focus about lack of agreement. The whole agreement? Some specific point of contention?

 

Also a bit lost on how best to emphasise non compliance with Section 78.

 

IN THE County Court at Port Talbot Justice Centre

Claim No.

BETWEEN:

Hoist Portfolio Holding 2 LTD

The Claimant

 

AND

The Defendant

************

 

_________________________ ________

 

WITNESS STATEMENT OF

_________________________ ________

 

 

I xxxxx, being The Defendant in this case will state as follows;

 

I make this Witness Statement in support of my defence in the claim.

I am a litigant in person with little knowledge of legal process so pray that your worships will forgive likely procedural errors on my part.

I’ve put my defence etc together with the help of various people but confess some of it is beyond my knowledge or experience.

 

1. The Claimant is an Assignee, a buyer of defunct or bad debts which are bought on mass portfolios of debt at much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

As an assignee or creditor as defined in section 189 of the Consumer Credit Act 1974 (CCA) there is a requirement on assignment of rights. This means that when an assignee purchases debt (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

2. On or around the 01 August 2018, I received a claim form from the County Court Business Centre, Northampton, for the amount of £5430.00. The Claimant contends that the claim is for the sum of £5940.50 in respect of monies owing under an alleged agreement with the account no. xxxxxxxxxxxx pursuant to the CCA.

 

3. Contained within The Claimant’s particulars The Claimant pleads that The Defendant has failed to make contractual payments under the terms of the agreement. There are no details contained within its particulars about when any alleged Default Notice was served upon The Defendant pursuant to S.87(1) CCA. There are no details contained within its particulars about when any alleged Default Notice occurred or the degree of default or details as to how the sums claimed have accrued. The Claimant is put to strict proof to evidence details of the default and service of any Default Notice.

 

4. The particulars of claim state the debt was assigned by Tesco Personal Finance PLC (‘Tesco’) to Hoist Portfolio Holdings 2 Ltd.(“Hoist Portfolio”), R/O First Floor, Le Masurier House, La Rue Le Masurier, St Helier, Jersey, JE2 4YE and that Notices were provided by way of a Notice of Assignment. The Claimant is put to strict proof to evidence the details of assignment from Tesco to Hoist Portfolio, rather than simply a letter generated by Hoist Portfolio making a bare assertion of assignment (EXHIBIT: AKJ1 p.66) without supporting evidence.

 

5. On 02 August 2018 I made a formal written request to The Claimant’s solicitors requesting that The Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT: PH1]. I also enclosed a copy of the letter sent directly to Howard Cohen and Co. requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the CCA [EXHIBIT: PH2].

 

6. On 02 August 2018 I made a formal written request to The Claimant to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the CCA [EXHIBIT: PH3]. The Claimant did not respond.

 

7. The Claimant has not provided Notice of Assignment from Tesco to itself only a letter written by themselves claiming to be the creditor. They are put to strict proof to the claim that they have purchased this debt.

 

8. In response to my CPR31.14 request, The Claimant provided copies of application documents that Tesco provide for new applicants by post that the applicant should complete, sign and return in order to establish the formation of a contract with Tesco [EXHIBIT: AKJ1 pp.9-10). These documents were not signed.

 

9. The Claimant’s pleaded case is that The Defendant entered into an agreement with Tesco under account reference xxxxxxxxxxxxx. I am uncertain as to which account this refers to. It is accepted that I have had Credit Cards with Tesco in the past however I have no recollection of the alleged account number The Claimant refers to. Therefore, The Claimant is put to strict proof to disclose the agreement upon which its claim relies.

 

10. Documents [EXHIBIT: AKJ1 pp.9-10 and AKJ1 p.2) in The Claimant’s Witness Statement do not contain any of the prescribed terms as required by section 60(1) of the CCA. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, in Schedule 6 Column 2 of SI 1983/1553:

 

A Amount of credit

A term stating the amount of credit

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

For a Running Account (credit card) agreement B,C and D are applicable.

 

11. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) of the CCA, which states

“127(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).”

 

12. This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords). Your attention is respectfully 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 CCA the agreement cannot be enforced.

 

CONCLUSION

 

13. In the first instance, The Defendant requests that The Court exercises its discretion to strike out The Claimant’s claim as The Claimant failed to comply with a Statutory Request under the CCA, thereby entering into a default situation. The Claimant is not permitted to enforce the agreement whilst the default is in place. Therefore, I maintain this account has become unenforceable at law.

 

14. The Defendant requests that The Court exercises its discretion to strike out The Claimant’s claim as The Claimant has not shown any communication from Tesco to itself assigning the debt via Notice of Assignment or otherwise.

 

15.The Defendant requests that The Court exercises its discretion to strike out The Claimant’s Claim as The Claimant has not shown any completed and signed application as implicitly or explicitly required by Tesco during the application process.

 

16. Until such time The Claimant provides evidence as detailed above it is denied that The Claimant is entitled under statute or equity while the default continues, to enforce the agreement pursuant to section 78 of the CCA.

 

 

Statement of Truth

 

I, xxxxxxx, The Defendant, believe the facts stated within this Witness Statement to be true.

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

[AndyOrch]

So a few points.....

 

1 -4 are fine no need to alter.......Your point 7 is a repeat of your point 4

 

Your points 5 & 6 state your request for the agreement (section 78)...and you should follow with a response of what they have disclosed and why its not legally valid.

 

Your point 8...you dont request a copy of the agreement vis a CPR 31.14...so its an irrelevant point

 

Make it flow like a story....1-3 intro and deals with the Default Issue...4 deals with the assignment...5 onward should deal with agreement...have another go do the edits and i will add a paragraph as to why their copy application is irrelevant.

 

Andy

[obvious]

Will do.

 

Re 5 and 6. While I received no response to my Section 78 request directly from the claimant, the solicitor did include a copy of the agreement(tick box) at the same time they responded to my cpr31.14 request.

 

To be clear, the solicitor has provided a digitally signed copy of the agreement.

[obvious]

I've just noticed that when they sent me a copy of the electronic application, on the same page as the tickbox signature (Page 3 of the CPR31.14 returns PDF above) in the section on "Your Right To Cancel" it says cancellation rights information will be forwarded separately.

 

Should the claimant have produced those cancellation rights details in response to my requests if they form a part of the agreement?

[dx100uk]

yes a very imp part.

[obvious]

Swapped and edited 5 and 6, removed 7 and reworded 8(now 7)

 

IN THE County Court at xxxxx Justice Centre

Claim No. xxxxxxx

BETWEEN:

Hoist Portfolio Holding 2 LTD

The Claimant

 

AND

The Defendant

************

 

_________________________ ________

 

WITNESS STATEMENT OF

_________________________ ________

 

 

I , being The Defendant in this case will state as follows;

 

I make this Witness Statement in support of my defence in the claim.

I am a litigant in person with little knowledge of legal process so pray that your worships will forgive likely procedural errors on my part. PERSONAL STUFF REMOVED I’ve put my defence etc together with the help of various people but confess some of it is beyond my knowledge or experience.

 

1. The Claimant is an Assignee, a buyer of defunct or bad debts which are bought on mass portfolios of debt at much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

As an assignee or creditor as defined in section 189 of the Consumer Credit Act 1974 (CCA) there is a requirement on assignment of rights. This means that when an assignee purchases debt (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

2. On or around the 01 August 2018, I received a claim form from the County Court Business Centre, Northampton, for the amount of £5430.00. The Claimant contends that the claim is for the sum of £5940.50 in respect of monies owing under an alleged agreement with the account no. xxxxxxxx pursuant to the CCA.

 

3. Contained within The Claimant’s particulars The Claimant pleads that The Defendant has failed to make contractual payments under the terms of the agreement. There are no details contained within its particulars about when any alleged Default Notice was served upon The Defendant pursuant to S.87(1) CCA. There are no details contained within its particulars about when any alleged Default Notice occurred or the degree of default or details as to how the sums claimed have accrued. The Claimant is put to strict proof to evidence details of the default and service of any Default Notice.

 

4. The particulars of claim state the debt was assigned by Tesco Personal Finance PLC (‘Tesco’) to Hoist Portfolio Holdings 2 Ltd.(“Hoist Portfolio”), R/O First Floor, Le Masurier House, La Rue Le Masurier, St Helier, Jersey, JE2 4YE and that Notices were provided by way of a Notice of Assignment. The Claimant is put to strict proof to evidence the details of assignment from Tesco to Hoist Portfolio, rather than simply a letter generated by Hoist Portfolio making a bare assertion of assignment (EXHIBIT: AKJ1 p.66) without supporting evidence.

 

5. On 02 August 2018 I made a formal written request to The Claimant to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the CCA [EXHIBIT: PH1]. The Claimant did not respond.

 

6. On 02 August 2018 I made a formal CPR31.14 request to The Claimant’s solicitors requesting that The Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT: PH2]. I also enclosed a copy of the letter sent directly to The Claimant requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the CCA [EXHIBIT: PH1].

 

7. The Claimant provided copies of application documents that Tesco provide for new applicants by post that the applicant should complete, sign and return in order to establish the formation of a contract with Tesco [EXHIBIT: AKJ1 pp.9-10). These documents were not signed.

 

8. The Claimant’s pleaded case is that The Defendant entered into an agreement with Tesco under account reference xxxxxxxxxxxxx. I am uncertain as to which account this refers to. It is accepted that I have had Credit Cards with Tesco in the past however I have no recollection of the alleged account number The Claimant refers to. Therefore, The Claimant is put to strict proof to disclose the agreement upon which its claim relies.

 

9. Documents [EXHIBIT: AKJ1 pp.9-10 and AKJ1 p.2) in The Claimant’s Witness Statement do not contain any of the prescribed terms as required by section 60(1) of the CCA. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, in Schedule 6 Column 2 of SI 1983/1553:

A Amount of credit

A term stating the amount of credit

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

For a Running Account (credit card) agreement B,C and D are applicable.

 

10. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) of the CCA, which states

“127(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).”

 

11. This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords). Your attention is respectfully 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 CCA the agreement cannot be enforced.

 

CONCLUSION

 

12. In the first instance, The Defendant requests that The Court exercises its discretion to strike out The Claimant’s claim as The Claimant failed to comply with a Statutory Request under the CCA, thereby entering into a default situation. The Claimant is not permitted to enforce the agreement whilst the default is in place. Therefore, I maintain this account has become unenforceable at law.

 

13. The Defendant requests that The Court exercises its discretion to strike out The Claimant’s claim as The Claimant has not shown any communication from Tesco to itself assigning the debt via Notice of Assignment or otherwise.

 

14.The Defendant requests that The Court exercises its discretion to strike out The Claimant’s Claim as The Claimant has not shown any completed and signed application as implicitly or explicitly required by Tesco during the application process.

 

15. Until such time The Claimant provides evidence as detailed above it is denied that The Claimant is entitled under statute or equity while the default continues, to enforce the agreement pursuant to section 78 of the CCA.

 

 

Statement of Truth

 

I, xxxxxxx, The Defendant, believe the facts stated within this Witness Statement to be true.

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

[obvious]

Here's the right to cancel bit in the electronic application

[obvious]

Re the right to cancel bit in the application (previous post), I propose to add to point 5

The electronic contract (EXHIBIT: AKJ1 p.2) does not contain the prescribed terms re cancellation rights per CCA1974/39/Part V/68 (EXHIBIT: PH3). The Claimant failed to provide these essential terms or indeed any terms under my section 78 CCA request.

Not sure if the terms are actually prescribed though. Ref https://www.legislation.gov.uk/ukpga/1974/39/part/V

 

@Andyorch I'm not sure about this at all or indeed the whole Section 78 approach. After all, they did provide a copy of the contract, just not in direct response to my Section 78 request.

 

Finally, perhaps there's something I could say re duty of care re responsible lending, where are my employment and income details etc.

 

What's left to do to get this witness statement in shape?

 

Thanks

[AndyOrch]

Could you please upload in you next post everything disclosed in connection to the agreement....so we have it all together.

 

 

Andy