car2403 -v- HFC Bank (Default removal)

caro · December 2, 2007

Trouble is PT you can't rely on getting a doofus of a judge. You have to be fully prepared in case you get one of the good ones. There are a few about after all.

I agree but I can assure you my 'theory' has worked on a number of occasions & with MCOL at that otherwise I wouldn't have suggested it

I wasn't having a dig JC, but I just want car2403 to understand that you can never be sure what will happen in court, and the importance fully understanding your case and of minimising risk to yourself.

Anyway, I'll leave the experts to it.

pt2537 · December 2, 2007

Expert? Me? :eek:

oh dear Caro youve done it now, my ego will be uncontrollable:D

caro · December 2, 2007

I thought your sig said you weren't an expert PT. I wasn't talking about you. (PT's head visibly shrinks) lol. Maybe I'd better shut up and stop digging before I offend anyone else.

BTW I must find out what's happened to the sigs.

car2403 · December 2, 2007

Thanks all for you input here - really appreciated.

I decided to Defend the case on the basis that I know what the dispute is from correspondance pre-litigation and I've done that on the premise that this forms part of their Claim which the Court will see during the disclosure section of the proceedings.

It's true that I could have argued the POC aren't enough and show no cause for the case, but that would have meant earlier than normal disclosure being ordered which might jeopardise the outcome - (I don't want them being ordered to provide executed agreements and original Default Notices at this point) the response to that would have been to send what they have already supplied to the Court and I would have been ordered to submit a Defence in reply. IMO, these 2 outcomes are exactly the same - just the second is longer in length of time to process. I want this Default removed ASAP as it's effecting current credit, so I took this risk (even if it is a little one) to speed up the processing of my claim.

Of course there's nothing stopping the Court ordering more detailed POC at some point, I just can't see the benefit of me doing it for them? If I'm wrong in that assumption, please tell me, but I have been going on advice from both Peter Bard and TomTerm along the way as well, so hopefully this is the right thing to do now.

I think that the key is each claim has to be dealt with on it's own merits, hence my reply to you JC on the CCA thread, as taking that approach with the limit info we had from Gaz at the time might have jeopardised his outcome. This is all just my opinion, so I don't have to be right. (Well, not all the time anyway!)

car2403 · December 3, 2007

Question on Claim 1;

How do you think this would go down, given what I've said here? Is it worth paying the Application Notice fee (£40, I think?) to see if I can convince the Court to see it my way, or should I leave it until the full trial hearing to really stitch them up good and proper?

Any comments on this approach? I don't want to waste another £40 on an Application Notice fee if it isn't advisable.

car2403 · December 7, 2007

I still have to submit an AQ (N150) before 11/12/07, so here it is;

Section A = No

Section B = Yes;

THE DEFENDANT IS A PRIVATE INDIVIDUAL AND THE CLAIMANT IS A BUSINESS THAT CARRIES ON BUSINESS IN THE
DEFENDANTS LOCALITY.

THE DEFENDANTS ADDRESS ON THE CLAIM FORM IS INCORRECT - THE CORRECT ADDRESS IS AS SET OUT ON

PAGE 4 OF THIS QUESTIONNAIRE.

THE DEFENDANT RESPECTFULLY REQUESTS THAT THIS CLAIM BE TRANSFERRED, THEREFORE, TO HIS NEAREST

COUNTY COURT, BEING; MORPETH AND BERWICK COUNTY COURT, FOUNTAIN HOUSE, NEWMARKET, MORPETH,

NORTHUMBERLAND, NE61 1LA

Section C, Part 2 = No

Section D, amount in dispute = £5053.73, Witnesses = only me, Experts = No, Track = Small Claims Track

ALTHOUGH THE VALUE OF THE CLAIM IS OVER THE SMALL CLAIM TRACK VALUE AMOUNT, IT IS A STRAIGHT
FORWARD DISPUTE OVER HOW THE LAW APPLIES TO THE FACTS. THE LAW INVOLVED IS PRIMARY LEGISLATION

THAT HAS BEEN ENACTED SINCE 1974 AND MORE RECENT BINDING DECISIONS OF THE COURT OF APPEAL AND THE

HOUSE OF LORDS. THE CASE DOES NOT INVOLVE COMPLEX LEGAL ARGUMENT, NOR DOES IT INVOLVE COMPLEX

QUESTIONS OF FACT. THE CASE SHOULD BE ALLOCATED TO THE SMALL CLAIMS TRACK TO MINIMISE THE PARTIES

EXPOSURE TO THE COSTS OF CONTINUING AND TO SAVE TYING UP THE COURTS RESOURCES FURTHER. THE

PREDICTED LENGTH OF A HEARING IS LESS THAN 1 HOUR.

Section E = 1 hour

Section F, Proposed Directions = Yes (see below) Agreed with other parties = No

Section G = blank (costs)

Section H = No documents attached (see below)

In Section H, I've included this statement and Draft Directions; (thanks to Paul - pt2537 - for these from another thread!)

If the court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached draft order. The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the Court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

- Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the Claimant to supply the requested documentation will make the case much harder for the Court to deal with this inhibits the Courts ability to deal with the case.

- The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 made it clear in paragraph 29 of

LORD NICHOLLS OF BIRKENHEAD judgment;

29. The courts 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 courts power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62

and 63, section 127(4) precludes the court from making an enforcement order.

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the Claimant, should the Claimant not have the documentation required to progress this case I suggest that there will be no case to answer. Therefore it stands to reason that this document must be disclosed before this case can progress any further

In the Newcastle-Upon-Tyne County Court

Case Number 7******

Between

HFC Bank

- Claimant

and

car2403

- Defendant

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations;

Copies of any original, signed and certified Default Notice and Termination Notice compliant with s87 and s98 Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, along with proof of service and all evidence to be adduced at trial to be available to the Court during trial hearing;

Copies of any original signed and certified document, contract or deed of assignment;

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925;

A schedule setting out each charge applied under the agreement, showing the date, amount, and reason given (if any) for that charge being made and pursuant to which contractual provision such charge was made, producing a copy of the contractual document relied upon;

Whether such charge is accepted to be a penalty, and if not why not;

If such charge is alleged to be a pre-estimate of the Claimants loss incurred by the Defendants actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

If such charge is not alleged to be a pre-estimate of the Claimants loss incurred by the Defendants actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable;

Copies of any statement or other document relied upon as showing that each and every charge has been made;

A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

Copies of decided cases and other legal materials to be relied upon;

Copies of any statement or other document relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant shall within 14 days thereafter file and serve the following;

An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

I've edited my original post, to include the standard Draft Directions for charge reclaims, as that make up part of my claim here.

A copy off to each party today, with this cover going to Restons;

Dear Sir/Madam,

HFC Bank PLC –v– car2403, in the Newcastle-Upon-Tyne County Court

Claim No: 7******

Your reference: ******

Please find enclosed Allocation Questionnaire, by way of service.

I am mindful of the Courts use of resources here, so in order to more speedily resolve this matter, I am willing to accept the sum of £1,000.00 to settle my Counterclaim, along with removal of the Default or any other adverse credit history relating to the account in question that is recorded with each Credit Reference Agency and complete cessation of all collection activity on the account. I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the Courts would approve of our settling this matter in a timely manner and without their further intervention.

Yours faithfully,

MoonHawk · December 7, 2007

Look good to me after a quick read. Those with more legally trained eyes may want to input though

Best Wishes

MoonHawk

car2403 · December 18, 2007

Claim 2 issued; (me -v- HFC)
Issue date - 20 November

Served date - 22 November

Response date - 6 December

Rang the Court today - AOS entered today, which was the last day for it to go in as I requested Judgment by Default last week. I've asked for an explanation as to why my Judgment request has been denied when, had the Court processed my request on time, Judgment would have been granted. The answer was that paperwork is processed within 5 days of receipt and the Defendants submissions take precedance over the Claimants when a Judgment is considered against Acknowledgment of Service!

Shocking!

:eek:

car2403 · December 20, 2007

Rang the Court today - AOS entered today, which was the last day for it to go in as I requested Judgment by Default last week. I've asked for an explanation as to why my Judgment request has been denied when, had the Court processed my request on time, Judgment would have been granted. The answer was that paperwork is processed within 5 days of receipt and the Defendants submissions take precedance over the Claimants when a Judgment is considered against Acknowledgment of Service!

Shocking!

Defence is now in; (represented by DG Solicitors)

DEFENCE

1. The allegations in the Particulars of Claim are not admitted and the Claimant is required to prove the matters on which he relies.

2. Paragraph 1 is admitted as far as the Claimant is a litigation in person It neither admits nor denies that the statement is made from the Claimant’s own knowledge and experience, such matters being outside the knowledge of the Defendant.

3. Paragraph 2 is admitted.

4. In answer to paragraph 3 the Defendant will say that a default entry was entered against the Claimant on 30th June 2004 in the sum of £675.47. The Claimant is put to strict proof in relation to the updated entry.

5. The Defendant neither admits nor denies the facts and matters pleaded in paragraphs 4 to 9 and the Claimant is put to strict proof of the same.

So, to paraphrase, they neither admit nor deny to receiving my CCA request or to failing to reply to that request within the prescribed period, or that I wrote to them telling them the agreement was unenforceable and enclosing a s.10/s.12 Notice. (I have proof of all of this happening)

6. It is averred that in relation to paragraphs 10 to 11 of the Particulars of Claim that the appropriate request form relating to the Claimant’s Subject Access Request was sent to him on 22th August 2007. The Defendant received notification from the Claimant that he had not received the relevant form and so a further copy was sent to him on 3O August 2007. The completed request form was received by the Defendant on 4 October 2007, albeit the form was signed by the Claimant and dated 25th August 2007. Documentation was then sent to the Claimant by the Defendant on 18th October 2007.

They seem to agree that information was disclosed under s.7 Data Protection Act S.A.R - (Subject Access Request), despite it being disclosed after the 40-day period and the Information Commissioners Office upholding my complaint about it. (I also have proof of this)

7. The Defendant has no knowledge of the facts and matters pleaded in paragraph 12 and the Claimant is put to strict proof of the same.

They’ve lost my letter then!

8. Paragraphs 13 to 19 of the Particulars of Claim are denied. Pursuant to Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 s3(2)(b) the signature box, signature or date of signature may be omitted from a copy agreement. It is averred that s63( 1) of the Consumer Credit Act 1974 does not apply as the unexecuted loan agreement was completed via the internet online and not presented personally to the debtor.

Sounds ominous to me… It must have been presented to me for me to sign it? Or, are they admitting that they don’t have a signed agreement, despite providing a copy of one? Hmmm…

9. The Defendant neither admits nor denies the facts and matters pleaded in paragraphs 20 to 22 and the Claimant is put to strict proof of the same.

The proof is the agreement and the Consumer Credit Act 1974!

10, Paragraph 23 of the Particulars of Claim is denied. Pursuant to the Defendant’s terms and conditions the Defendant is entitled to make a charge for its services as set out in the Defendants price list and terms and conditions. The Defendant denies that the charges applied to the Claimants account amount to penalties at common law and/or unfair contract terms for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs). The charges applied to the Claimant’s account are reasonable and are properly and fully disclosed in the Defendant’s terms and conditions and published price list. The charges represent the contractually agreed price for the services provided and the UTCCRs are not applicable to them: alternatively, they are not unfair contrary to the UTCCRs. Further, the charges are not default charges and, accordingly, cannot amount to a penalty.

Whether they are default charges or not is a matter of fact to be decided by the Court. If they are reasonable and proper, give me some evidence of how that is the case. Where is the term in the agreement that says they are “contractually agreed” exactly? (It doesn’t exist!)

11. The Defendant neither admits nor denies the facts and matters pleaded in paragraph 24 and the Claimant is put to strict proof of the same.

Easy.

12. In answer to paragraph 25 the Defendant will say as follows:

(i) A letter advising the Claimant that a default notice was going to be registered against him was sent to the Claimant on 1st May 2004 and it is therefore denied that the Defendant has not terminated the agreement correctly.

(ii) The default notice entered on 30th June 2004 for an amount of £675.47, which remains on the Claimant’s credit file, is correct and accurate.

Prove it then! Show me the originals!

13. The Defendant neither admits nor denies the facts and matters pleaded in paragraphs 26 to 29 and the Claimant is put to strict proof of the same.

No, you have to prove you’ve Defaulted me properly and accurately, which you can’t – turning this around on me won’t wash…

14. Paragraphs 30 — 47 of the Particulars of Claim are denied. Reference is made to the agreement, particularly the section headed ‘Important — Use of your information” which relates to the use of the Claimant’s information. It is a term of the agreement to which the Claimant agreed that the Defendant may disclose information about the Claimant which they hold about him from time to time in relation to the agreement entered into and his conduct of it which includes payments he may make and any default or failure to keep to its terms.

Just take a look at the agreement - (post here; http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-4.html#post1186453 - it's the second agreement in the attachment to that post) no mention of any sharing of information at all. There is a reference to a “Notice” on “Page 2”, but this hasn’t been provided in the CCA or the DPA SAR information, so I’ll be relying on s.172 which binds them on what they’ve sent, not what they can now produce.

15. The Defendant neither admits nor denies the facts and matters pleaded in paragraph 48 and the Claimant is put to strict proof of the same.

How can I prove that I didn’t agree to something? Eh, refer to the agreement and the fact it doesn’t say I agreed!

16. The Defendant denies paragraph 49 and repeats paragraphs 6, 8, 12 and 14 of this Defence.

Same response to 14 and 15. 6, 8 and 12 are irrelevant to paragraph 49.

17. In relation to paragraphs 50 to 52 of the Particulars of Claim and without prejudice to the generality of the foregoing denial, the Defendant avers further that:

(i) The Defendant was entitled to record a default credit entry against the Claimant;

(ii) The Claimant is put to strict proof of any loss and damage allegedly suffered by the Claimant

This is getting silly now – show me the evidence to prove what you are saying and resolve the dispute! You can’t, so I’m suing you for substantial damages based on a case law precedent that says I don’t need to show damages as it’s obvious! (and binding, unfortunately!)

18. Save as set out above, each and every allegation made by the Claimant is denied. For the reasons set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Ok. Lets see what a Judge thinks then…

The AQ (N149) has to be back by 7 January. I'll probably be using the same one I'm using with my other HFC claim for that;

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1274737

car2403 · December 21, 2007

Question on Claim 1;

I'm having an interesting convo with JonCris on the main CCA thread;

How do you think this would go down, given what I've said here? Is it worth paying the Application Notice fee (£40, I think?) to see if I can convince the Court to see it my way, or should I leave it until the full trial hearing to really stitch them up good and proper?

I've also attached the AQ I've prepared - any feedback would be appreciated. (I am prepared to send an Application Notice, as above, with this AQ)

EDIT - attaching the AQ doesn't really work... I'll find another way of posting it up.

I rang the Court today to see what was happening with this Application - the Claim has been sent to the listing manager to list for hearing but hasn't been assigned to a track yet. The clerk said that the hearing would probably be listed in late March! :eek:

I asked about the Application and was told there was another Application from the other side waiting for a Judge to review! The jist of this is that I served a copy of my Application Notice asking for the Claim to be struck out as it's not properly particularised in enough detail and requesting Summary Judgment on my Counterclaim due to an insufficient Defence against it - the response from the other side is to request Summary Judgment AGAINST ME by return. The interesting thing is they haven't served a copy of their Application, so I don't know what the ground of it are - I asked the Clerk about it and he reckons they don't need to serve a copy to me. (Surely I need to see it to prepare for an Application Hearing though?)

Things like this must be difficult for the Court, (although they are receiving fees from both sides each time!) as it's all very tit-for-tat now. I can't see how they can be awarded Summary Judgment without amending their POC and my Defence has to be sufficient against any POC anyway?

I remember Laiste mentioning this was standard tactics for HFC/Restons, so I'm not too worried, although I was surprise to hear it would take so long to deal with. (All this started in August!)

I'm busy working on a Skeleton Argument, but I think I'll ease off on that if I have 3 months to prepare for a full hearing...

Outrageous, isn't it?

P.S. I'm still waiting for the claim to be transferred to my local Court, which will probably add a few weeks on to the time it's going to take to sort this all out.

caro · December 22, 2007

If you have 3 months to prepare I think you should get it sorted asap so that you know it's sorted, it's all fresh in your mind, and you have time to consider it and amend if necessary as time goes on. The more you prepare, the better chance you have of success, and the more confident you can be when you get to court.

huggles · December 26, 2007

very interesting, what a shame about the timescales.

I'm subscribing anyway

car2403 · December 27, 2007

If you have 3 months to prepare I think you should get it sorted asap so that you know it's sorted, it's all fresh in your mind, and you have time to consider it and amend if necessary as time goes on. The more you prepare, the better chance you have of success, and the more confident you can be when you get to court.

Working on that skeleton argument now caro - I will be prepared for this, whenever it happens to be...

caro · December 27, 2007

Well done Car. At least if you need help you've got plenty of time to get it, and can take a break AFTER it's done, happy that you don't need to worry about it.

car2403 · December 30, 2007

While working on this argument, (which is turning in to a book, 20 pages!) I've revisited the data HFC sent me in my S.A.R. response.

The first claim (HFC -v- car2403) is the larger of the 2 with a statement balance of £3,900. (Incidentally, they seem to be claiming £4,992, which is the original Default amount - not the outstanding balance. Could be an attempt to get the case on fast-track, perhaps?) They have applied £245 in collection charges, which I'm obviously challenging in my Defence and claiming in my counterclaim. (With 8% statutory interest)

What I've noticed, which has now racked my brains and I can remember now, is that this larger agreement came about as a consolidation loan for 4 smaller accounts. The good news is that these smaller accounts each have collection charges on them as well, so the collection charges on all these accounts now total £1,100. (Plus £300+ at 8%!)

So, that's a claim for £3,900 with £1,100 in charges applied! This Default Notice amount is looking more and more dodgy the further I delve in to the details. Try talking the Judge out of applying the Wilson Judgment on that one, HFC!

I may prepare an offer of settlement, like this;

Claim 1 - (HFC -v- car2403)
- £3,992 enforceable by HFC IF the Court disagrees with my Defence. (Won't happen!)
- £1,000 recoverable in damages by me for unlawful Default.
- £245 (plus £55 @ 8%) charges recoverable by me.
- Another £855 (plus £245 @ 8%) charges on those other accounts.
[*]Claim 2 - (car2403 -v- HFC)
- £600-something enforceable by HFC IF the Court disagrees with my Claim. (Won't happen!)
- £1,000 recoverable in damages by me for unlawful Default.
- £180 (plus £35 @ 8%) charges recoverable by me. (from memory, might be more)

So, if HFC win Claim 1 and Defend Claim 2 entirely, they will be able to enforce £4,592 against me. If that happens, I'll get a CCJ and be able to offer reduced payments through the Court, which will probably be more or less the amount I've been paying for the last 2 years anyway. It will take me 11 years to pay the debt off in that case.

If I Defend Claim 1 and win Claim 2, HFC can't enforce £4,592 against me, plus have to refund £515 in charges plus interest and pay me £2,000 in damages.

What's the chances they'll settle for Default removal, write off of the balances and withdrawl of both these claims?

I suppose they, like I, have nothing to lose by continuing now. I just hope it comes up Snake Eyes for me on the day - which I think must be highly probable!

I'm still working on the Skeleton Argument, (actually, it's more like a combined "Statement of Evidence and Skeleton Argument", as I've gone in to far too much detail about HFCs/Restons litigation conduct to really annoy the Judge!) which I should have done tonight. I'll post it up in full when it's done for comments...

caro · December 30, 2007

Do you have 2 ongoing claims? If so, be careful that they don't get combined and put into fast track.

I'll be honest and say I'm not totally familiar with your case, but if you have initiated a claim you shouldn't even think of offering to settle. You would be showing HFC that you don't really want to go to court, which would give them leverage. If you've taken them to court, let the court deal with it, and let HFC do any running to settle - if you know that your case is rock solid - or as much as it can be.

Do not settle for one penny without default removal either or you'll really be struggling to get that.

car2403 · December 30, 2007

Thanks for the warning, but I think I can see that happening anyway, caro, so it's probably out of my hands. The 1st claim is at a different Court, as they had my address wrong on the claim form - something I've pointed out on the AQ, as I need to claim transferred.

To be honest, I'm willing to run the risk. Having 2 claims will cost me more money for them both to be heard, which I could avoid by having them consolidated. I also think both claims are sound, otherwise I wouldn't have gotten this far with either of them - hopefully you'll agree with me when you see my Skeleton Argument I intend to post up soon.

caro · December 30, 2007

I'm afraid I'm absolute rubbish when it comes to the legal stuff, but I'll gladly look.

car2403 · December 31, 2007

Ok, here goes - deep breath...

Claim Number:7*******

In the *** County Court

Between:

HFC Bank Limited

(Claimant)

and

car2403

(Defendant)

_______________________

STATEMENT OF EVIDENCE &

SKELETON ARGUMENTS TO BE

SUBMITTED BY THE DEFENDANT

_______________________

REASON FOR SUBMISSION OF THIS STATEMENT AND ITS INTENDED USE

1. I, car2403, the Defendant in this case, make this statement of evidence and outline my skeleton arguments from my own knowledge or experience. Except for where reference is made to specific documentation contained within the exhibits attached, this statement is made in support of said documentation.

2. This statement is submitted by the Defendant (a litigant in person) and outlines the Defendants case in full Defence against the Claimants claim and further Counterclaim against the Claimant.

3. It is intended this statement will expedite the upcoming hearing and elucidate and clarify the issues that appear to the Defendant to be hampering the speedy and equitable resolution of this case. It is intended to be read in conjunction with both the Defence and Counterclaim submitted by the Defendant on 19 October 2007.

BACKGROUND TO THE CASE

4. The Defendant admits that it has held an account with the Claimant since on or around the 25 March 2003, in relation to the agreement in question, numbered ******.

5. The Claimant has brought these proceedings seeking enforcement of said agreement.

6. The agreement is stated by the Claimant, inter alia, to be enforceable against the Defendant under the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) as amended, and the subsequent regulations made under that Act.

7. The Defendant denies that the agreement can be argued to be a Consumer Credit Agreement, pursuant to s.8 and s.13 CCA 1974, or said to be regulated by that Act, for the reasons stated in this document. The Defendant will outline its contention that the agreement is unenforceable under the Act and, therefore, the Claimant cannot seek enforcement via the Court. The application of charges applied by the Claimant will be argued, then the Defendant will then outline the reasons he believes that the Claimant has unlawfully Defaulted and Terminated his account as a result of these charges and failure to comply with the Act.

8. The Defendant will further argue that the Claimant is in breach of the data protection principles laid down by the Data Protection Act 1998, (herein referred to as “Data Protection Act 1998”) and in doing so has breached its obligations under that Act, in that it is processing and sharing incorrect and inaccurate data relating to the Defendant as a result of the arguments contained herein, thereby causing damage to the Defendant.

PART 1:

CONSUMER CREDIT ACT 1974

PRE-LITIGATION CORRESPONDANCE AND THE CLAIMANTS BRINGING OF THIS CLAIM

9. During September 2005, the Claimant employed the Claimants representatives in this case (Restons Solicitors Limited, a company) to collect the outstanding balance from the Defendant. At that time, the Defendant was contacted by the Claimants representatives and commenced making payments to them directly under the agreement with effect from October 2005. This makes the Claimants representatives in this case an “agent” of the Claimant under s.175 CCA 1974. The Claimants representatives are also “debt collectors” for the purposes of s.189 and within the meaning of s.145(7) of the CCA 1974.

10. During August 2007, after performing an audit of his Credit Reference Files held by major Credit Reference Agencies, the Defendant discovered that the Claimant had recorded a Default entry against the Defendant in relation to the alleged agreement on 30 April 2004 - the original Default amount recorded as being in these Credit Reference Files as £4,817. (The Defendant refers to highlighted parts of an extract of his Credit Reference Files, attached, “Exhibit X”)

11. Upon completion of this audit, the Defendant wrote to the Claimants representatives on 11 August 2007 making a request as per the obligations outlined under s.78 CCA 1974. This request was sent by Royal Mail First Class Post, with proof of postage being recorded on 13 August 2007. (The Defendant refers to “Exhibit X”, as attached)

12. In a response from the Claimants representatives, in a letter dated 30 August 2007, (“Exhibit X” attached) an alleged copy of the originally executed agreement and an alleged signed true and certified copy of the original Default Notice were supplied. No other document was provided in the response, whether referred to in the agreement or not. The Claimants representatives also requested that the payment arrangement in force at that time was reviewed and they required the Defendant to complete a financial statement of income and expenditure, with a view to receiving a revised offer of payment. The Claimants representatives gave until 13 September 2007 for the return of such information, and outlined that “failure to do so would result in the immediate issuing of legal proceedings”.

13. The matters outlined in paragraph 12, appearing as statements from an agent of the Creditor, are binding on the Claimant under s.172 CCA 1974.

14. The Defendant replied to the Claimants representatives, in a letter dated 1 September 2007, (“Exhibit X” attached) highlighting several issues with the documentation sent and advising the Claimants representatives of a dispute over charges and fees applied to the account, outlining that he considered the whole balance of the account to be “in dispute” until this issue was resolved. Specifically, the Defendant pointed out that the Default Notice supplied was not a signed, true and certified copy of the original, as specifically requested in his letter dated 11 August 2007. (Reference is made to paragraph 11, above)

15. The Claimants representatives’ response to the Defendants letter dated 1 September was to issue these proceedings via Northampton Bulk County Court Centre, the claim being issued on 19 September 2007. At this time the account was still in dispute as outlined in paragraph 14 above - the Claimants representatives were aware of this dispute due to the Defendants letter to the Claimants representatives dated 1 September 2007.

16. The Claimant and their representatives, having failed to fully comply with the Defendants s.78 CCA 1974 request, (reference is made to paragraph 12, above, in that; no document referred to in the agreement has been provided; no statement or statements of account having been supplied at that time and in that the full requirements of s.78(1)(a), s.78(1)(b) and s.78(1)© having not been met at that time also) are in default of that request under s.78(6)(a). The Claimant, therefore, is unable to enforce the alleged agreement against the Defendant in these proceedings (s.78(6)(a) CCA 1974) and has since committed a criminal offence due to its continued default in providing said information. (s.78(6)(b) CCA 1974)

17. The Defendant argues that the Claimants commencing of these proceedings against the Defendant is an abuse of the Courts process under CPR Part 3.4(2)(b) and invites the Court to strike out the Claimants claim under its powers outlined under that Part.

18. Furthermore, the fact that the Claimants representatives were aware that the account was, and still is in dispute, but deciding to issue these proceedings is in direct disregard to s.2.8.i of the Office of Fair Tradings (OFT) Debt collection guidelines (“Exhibit X”, attached) and s.13.6.k of the Banking Code. (“Exhibit X”, attached)

19. In the alternative, which is denied, where it is held that the Claimant was entitled to bring these proceedings against the Defendant, despite the issues outlined by the Defendants pleadings in paragraphs 12-18 above, the Defendant will to continue to plead as follows;

20. In response to the Claimants claim form, the Defendant wrote to the Claimant, in a letter dated 24 September 2007 (“Exhibit X”, attached) and provided a copy of said letter to the Claimants representatives. Within that letter, (which refers to the agreement in question in these proceedings along with another agreement held with the Claimant) the Defendant outlined his view that the agreement did not fully meet the form and content requirements of s.60 & s.61 CCA 1974, thereby meaning that the agreement was improperly executed from inception – specifically, in that the agreement provided did not contain;

a. All the terms and conditions, within the signature document, relating to the agreement. Specifically, but not exclusively, reference was not made to those terms allowing the Claimant to add default charges and fees to the account being missing; (as required by s.61(1)(b) CCA 1974 and the Consumer Credit (Agreements) Regulations 1983, as amended) and

b. A notice of the rights of the Defendant to terminate the agreement early, setting out the rebate allowance calculation on early termination if that were to happen; and

c. A notice of the protection and remedies available to the Defendant under the CCA 1974. (required by s.60(1)© CCA 1974 and Schedule 2(3) of the Consumer Credit (Agreements) Regulations 1983, as amended)

The Defendant further requested that the Default information recorded against him be removed as such Default, without a properly executed regulated agreement, would be unwarranted and unlawful, as only a correctly executed regulated agreement can be Defaulted and Terminated under s.87 and s.98 CCA 1974. The Defendant further relied on provisions of the Data Protection Act within that letter to support his argument – these arguments are outlined in paragraphs 80-81 and 82-104, below.

21. In reply to the Defendants letter, the Claimant responded with a letter dated 10 October 2007. (“Exhibit X”, attached) The Claimant relied on the fact that they had sent a response to the Defendants s.78 CCA 1974 request to the Solicitor dealing with the debt (the Claimants representatives in this case) containing the information requested by the Defendant. The Defendant argues this is still a default under the terms of s.78(6) CCA 1974, due to the wording of 78(1) CCA 1974, which clearly states such information should be sent to the Defendant, as the debtor under the agreement, not the agent acting for the Claimant. The Defendant further argues that the information required under that section is still missing, as outlined in paragraph 16 above.

22. Furthermore, the Claimant enclosed further copies of the agreement supplied to the Defendant already, (outlined at paragraph 12, above) along with statements of the account as it stood at that time. The Claimant also enclosed sample copies of Default Notices, claiming these were examples of the Notices issued when the agreement was Defaulted and Terminated. The Claimant further relied on the fact there is an outstanding balance as reason to continue processing the Defendant’s data with third parties, despite the Defendants contention that such processing is causing him harm, is unjustified without a correctly executed agreement and that the agreement had been Defaulted and Terminated unlawfully, requiring that such processing should be ceased as being inaccurate under the Data Protection Act. (These issues are detailed in paragraphs 80-104, below)

23. The matters outlined in paragraph 22, appearing as statements from the Creditor, are binding on the Claimant under s.172 CCA 1974.

24. The matters outlined in paragraph 21-23 conflicts with the matters already relied on by the Claimants representatives at paragraphs 12-13 above, in that the Default Notice supplied by the Claimant differs to the Default Notice supplied by the Claimants representatives.

25. The Defendant, in response to the Claimants claim and correspondence received after receipt of the claim form, wrote to the Claimants representatives in a letter before action dated 15 October 2007, (“Exhibit X”, attached) outlining the Defendants intentions to submit a full Defence and Counterclaim against the Claimant. This letter was sent to the Claimants representatives, as this was the address for service of documents stated on the Claimants own claim form.

26. The Claimants representatives replied to the Defendants counterclaim letter before action in a letter dated 15 October 2007. (Reference is made to paragraph 25, above) The Defendant argues that the content of this letter also conflicts with those matters outlined in paragraphs 12-13 and paragraphs 21-23, in that the Claimants representatives;

a. Claim not to be acting as agent for the Claimant in these proceedings. This is despite the Claimants representatives details appearing in the “address for service of documents” box on the Claimants own Court claim form and the Claimants representatives holding the status of “agent” and “debt collector”, as outlined at paragraph 9, above; and

b. Outline that the Claimant does not store copies of Default Notices issued to debtors and that the Claimant provides reconstituted Notices “using the information on [the Claimants] system” in case of query of such Notices. This conflicts with the Claimants representatives themselves supplying such a Default Notice as outlined at paragraph 12-13, above, and the Claimant further relying on sample copies of such Default Notices as outlined in paragraph 21-23, above; and

c. Have confused the alleged default of the Defendant under the agreement (the actual alleged breach of the terms of repayment under the agreement) with the Default entry recorded against the Defendant on his Credit Reference file by the Claimant. The Defendant denies that he can be held as being “in default” under the agreement at all, for the reasons outlined in this document, in that the agreement itself has not been properly executed under the CCA 1974, is itself unlawful and the Defendant cannot be held as being “in default” of such agreement due to the agreement being legally unenforceable. The Defendant therefore argues that any Default entry recorded on his Credit Reference File is unlawful, inaccurate and not in full compliance with the requirements CCA 1974 or the Data Protection Act 1998; (these issues are outlined at paragraphs 49-104, below) and

d. Claim to have provided the Defendant with information requested under a CPR Part 18 request, when such information has not been supplied. (reference is made to paragraphs 37-39, below) The Defendant therefore argues that the Claimant is still in default as outlined at paragraph 16, above; and

e. Attempts to entice the Defendant to admit part of the claim by particular reference (in terms intended to have such effect to misrepresent the Defendants legal position) to the Defendants dispute with the Claimant over fees and charges applied to the account, outlining that they believe the Defendants approach to the response to claim as being “wrong”. The Defendant contends that such statements are designed to confuse the Defendant, himself being a litigant in person with limited knowledge of the legal and Court processes and having limited resources available to him to mount a sufficient defence to the claim insomuch as these statements are misleading to the Defendant, in to admitting part of the claim and in apparent disregard to the Defendants submissions in his Defence or the correspondence to date regarding the claim at that time. The Defendant will argue that this is an attempt to alter the balance of the parties, which is against the Overriding Objectives of the Courts process and is further evidence lending support to his argument at paragraph 17, above; and

f. State that they believe that the Defendants approach to its counterclaim against the Claimant is baseless, despite the reasons for the counterclaim being outlined in the Defendants letter before action in relation to his counterclaim. The Defendant contends that these statements are designed to mislead the Defendant further, aimed at discouraging him from entering such a counterclaim and is in further support of the Defendants arguments at paragraph 26(e), above, being designed to have the same effect as outlined there. The Defendant will argue that this is also an attempt to alter the balance of the parties, which is against the Overriding Objectives of the Courts process and is further evidence lending support to his argument at paragraph 17, above

These matters, as statements from an agent of the Creditor, are binding on the Claimant, pursuant to s.172 CCA 1974.

THE DEFENDANTS CHALLENGE TO THE CREDIT REFERENCE AGENCIES UNDER S.159 CCA 1974

27. The Defendant has also challenged the 2 Credit Reference Agencies that continue to allow the Claimant to process incorrect or inaccurate data – Experian PLC and CallCredit PLC. This challenge was mounted under s.159 CCA 1974, in the form of a letter to both Credit Reference Agencies, including correspondence between the Claimant and the Defendant, dated 30 September 2007. (“Exhibit X”, attached)

28. Experian PLC has replied to the Defendant in a letter dated 25 October 2007, outlining that the Claimant has investigated the accuracy of the information and have verified its accuracy; therefore Experians files relating to the Defendant remain unchanged. (“Exhibit X”, attached) This information been confirmed by the Claimant as being correct and accurate, which is denied.

29. CallCredit PLC has not responded to the Defendants correspondence.

THE CLAIMANTS FAILURE TO SUFFICIENTLY PARTICULARISE ITS CLAIM AGAINST THE DEFENDANT AND THE CLAIMANTS FAILURE TO OFFER A COMPLETE DEFENCE TO THE DEFENDANTS COUNTERCLAIM

30. The Claimants claim is insufficiently stated under CPR Part 16.2(1)(a) and CPR Part 16.4(1)(a). The Claimant's Defence to the Defendant's Counterclaim amounts to a simple denial of the Counterclaim and offers no reasons for denial (CPR Part 16.5(2)(a)) and the Claimant has not offered a different version of events from that given by the Defendant in his Counterclaim. (CPR Part 16.2(b)) The Defendant applies to the Court to strike out the Claim and Defence to Counterclaim, awarding Summary Judgment to the Defendant (CPR Part 24.2(a)(i)), as CPR Part 24.2(b) applies to these proceedings.

31. The Defendant argues that the Claimants Particulars of Claim is insufficiently stated, as it does not refer to the terms under which the claim is brought concisely and causes issues for the Defendant in he is unsure as to what the case to answer is - therefore the Defendant is unable to Defend the claim properly.

32. Despite these concerns the Defendant submitted a full Defence to the claim based on the dispute in question, which the Defendant has previously corresponded up on with the Claimant and their representatives. The Claimant has failed to clarify this issue and has also failed to provide such information under a CPR Part 18 request for more information from the Defendant, dated 25 September 2007, giving 14 days in which to comply with that request.

33. The Defendant argues that the Claimants claim is insufficiently stated under CPR Part 16.2(1)(a) and CPR Part 16.4(1)(a) and respectfully asks the Court to take action under its powers in relation to this Part to strike out the Claimants Claim due to this failure. Given that the Defendant has submitted a full Defence and Counterclaim to the Claim, the Defendant respectfully applies to the Court to award Summary Judgment to the Defendant, under CPR 24.2(a)(i), in the current proceedings in that the Claimant has no real prospect of succeeding on the claim, due to these insufficiently stated particulars of claim.

34. Further, the Defendant has submitted a full Counterclaim to the Claim brought by the Claimant - the Claimant has submitted a Defence to this Counterclaim, but the Defendant argues that this Defence to Counterclaim is a simple denial of the Counterclaim brought under CPR Part 16.5(2)(a). The Claimant has also failed to offer a different version of events from that given by the Defendant in his Defence and Counterclaim under CPR Part 16.2(b). The Defendant, therefore, also respectfully applies to the Court to strike out the Claimants Defence to Counterclaim and requests that the Court award Summary Judgment to the Defendant under CPR Part 24.2(a)(i).

35. The Defendant also argues that CPR Part 24.2(b) applies to the current proceedings, for the reasons already outlined, and that there is no compelling reason as to why the case should be disposed of at trial.

36. In the alternative, where it is held not to strike out the Claimants Claim, the Defendant seeks an order from the Court that the proceedings be generally stayed for a period of 28 days to allow the Claimant to further particularise its Claim and clarify the terms under which it claims against the Defendant in such detail as required by CPR Part 16, ordering that the Claim be struck out without further notice if the Claimant does not take such action.

THE DEFENDANTS REQUEST FOR MORE INFORMATION UNDER CPR PART 18

37. The Defendant sent a request for more information under CPR Part 18 to both the Claimant and the Claimants representatives, dated 25 September 2007. (“Exhibit X”, attached)

38. Neither the Claimant nor the Claimants representatives have supplied all information specifically referred to in the Defendants request, namely, the following documentation is missing;

a. A true copy of the terms and conditions that applied to the account at the time of Default and at the time the account was opened;

b. All records the Claimant holds on the Defendant relevant to this case, including, but not limited to;

i. Where there has been any event in the Defendants account history over this period which has required manual intervention by any person, the Defendant required disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the Defendants account held with the Claimant; and

ii. Details of logic involved in any automated decisions the Claimant made about the Defendant or the Defendants account with the Claimant; and

iii. True copies of any notice of assignment and/or Default Notice or Enforcement Notice that the Claimant sent the Defendant, with a copy of any proof of postage that the Claimant holds; and

iv. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

v. Specific details of the fees/charges levied by any other agency, including the Claimants representatives, in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied; and

vi. A list of third party agencies to which the Claimant has disclosed the Defendants personal data to, along with a summary of the nature of the information the Claimant has disclosed; and

c. Any other documents the Claimant seeks to rely on in its claim.

39. The Defendant avers that this failure on the part of the Claimant and the Claimants representatives’ results in the Defendant being unable to submit a complete Defence to the case brought against him and alters the balance of the parties in these proceedings to favour the Claimant.

ISSUES WITH THE SUPPLIED CREDIT AGREEMENT

40. The Defendant refers in this section to the agreements supplied by both the Claimant and the Claimant representatives, as outlined in paragraphs 12-13 & 21-23, above. (“Exhibit X”, attached)

41. It is submitted that these agreements are improperly executed because they are not in the prescribed format set out in s.60, s.61 and s.64 CCA 1974 and under the Consumer Credit (Agreements) Regulations 1983.

42. The agreement was made before s.15 of the Consumer Credit Act 2006 came into force - therefore, by way of s.11 of the Consumer Credit Act 2006, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force.

43. The agreement provided has been improperly executed under s.64(5), in that the agreement does not contain statements of the debtors right of cancellation (as required by s.64(1) CCA 1974 and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553)) and that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 CCA 1974 and the regulations there under.

44. Any application for an Enforcement Order under s.65(1) CCA 1974, as a result of the improper execution, under s.64(1) CCA 1974, (outlined in paragraph 43, above) must be dismissed by the Court pursuant to s.127(4)(b) CCA 1974.

45. In addition to this, that the alleged copy agreement has been improperly executed under s.61 CCA 1974, in that it does not include details of the protection and remedies available under the CCA 1974, as prescribed in s.60(1) CCA 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553).

46. Any application for an Enforcement Order under s.65(1) CCA 1974, as a result of the improper execution under s.61 CCA 1974, (outlined in paragraph 45, above) should be dismissed under s.127(1)(i) CCA 1974, due to the prejudice caused to the Defendant by;

a. The Defendant’s pleadings regarding the defaulting and termination of the account outlined in paragraph 79-80 of this document, specifically;

i.That the account has been improperly and unlawfully Defaulted and Terminated; (As outlined in paragraph 79-80, below; s.88 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993) and

ii.This improper and unlawful Default and Termination has effected, and continues to effect, the Defendant’s reputation and Credit Reference files, held by the Credit Reference Agencies; and

iii.The Claimants failure to sufficiently reply to, or to unconditionally comply with, the Defendants Statutory Notice issued pursuant to s.10 & s.12 of the Data Protection Act 1998, (outlined at paragraph 101-102, below) requiring it to remove this incorrect and inaccurate information from its own records and to cease from continuing to process or share that information with third parties, specifically, but not exclusively limited to, the Credit Reference Agencies.

b. The Defendant disputes the balance of the account, as outlined in paragraph 48-78 of this of this document;

c. The fact that the Claimant and their representatives is aware of these disputes, but has decided to issue these proceedings, conflicts with the Office of Fair Tradings guidelines on Debt collection activity (“Exhibit X”, attached) and the Banking Code (“Exhibit X”, attached) as outlined in paragraph 18 above.

47. The Defendant further also makes reference to a case heard in the House of Lords, Wilson v First County Trust Ltd [2003] UKHL 40, which is binding authority in this case. In particular, the Defendant makes specific reference to Paragraphs 49, 121, 123 and 173 of that Judgment.

PART 2:

UNCERTAIN ACCOUNT BALANCE, PENALTY CHARGES AND THE CLAIMANTS DEFAULTING OF THE DEFENDANT

UNCERTAIN ACCOUNT BALANCE

48. The Defendant disputes the balance of the account, as the Default balance, outstanding balance and the amount of the claim is uncertain;

a. The Claim form showing a Default Balance of £4992.49;

b. Statements provided by the Claimant showing that figure to be £3991.85; (“Exhibit X”, attached)

c. The Claimant reporting the original default balance to CallCredit PLC, (a credit reference agency) as £4817.00 and an outstanding balance of £3859.00 (updated on 4 September 2007). (“Exhibit X”, attached)

None of these sums appearing as part of the Claimants claim. Accordingly the Defendant puts the Claimant to strict proof that the Default balance, outstanding balance and the amount of the claim are both valid and lawful.

PENALTY CHARGES

49. During the period in which the account was operating the Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest at the contractual rate on these charges once applied. (“Exhibit X”, attached)

50. The Defendant will further refer to 4 other account statements, (“Exhibit X”, attached) numbered ******** , ******** , ******** and ******** , all of which had their account balances consolidated into this account. These accounts also had various charges applied to them which are now contained within the balance of the account in question. The Defendant will argue that these additional charges are also subject to the challenge laid down in paragraph 49, above.

51. The total of these charges being £1,100.00 and the breakdown of charges applied to against account being as follows;

a. Account ******** – £215.00; and

b. Account ******** – £180.00; and

c. Account ******** – £230.00; and

d. Account ******** – £230.00; and

e. Account ******** – £245.00.

52. The Defendant contends that no such contractual provision exists within the agreement to allow the Claimant to levy such charges.

53. In the alternative, which is denied, where it is held that there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the Common Law of penalties because the charges represent a disproportionately high sum in compensation compared to the cost of the purported breach; are not in any way a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or be related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to create a profit for itself.

54. The Defendant submits that the charges levied to his account held with the Claimant, (“Exhibit X”, attached) are, notwithstanding the defence of the Claimant, default penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the Defendant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the common law.

55. It is admitted that the Claimant is entitled to include a liquidated damages clause. However, it is submitted that the Claimants charges are not related to or intended to represent any actual loss arising from a breach of contract, or a reasonable charge for a service provided, but instead unduly and extravagantly enrich the Claimant which, by virtue of the legislation cited in paragraph 54 above, exercises application of such penalty charges with a view to profit. Therefore, the Defendant contends that the charges applied by the Claimant are disproportionate, excessive, exorbitant and extravagant, and believes it to be unconscionable that they represent, are a pre-estimate of, or are in any way related to, its actual loss suffered as a result of the Defendants breaches of contract.

56. The Defendant cites the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach of contract and that the charge for a loss suffered from the breach should be the amount necessary to put both parties in the same position before the breach occurred.

57. The Defendant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

58. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

59. The breaches of contract in this case relate to failing to make regular payments under the agreement. For this, the Defendant was then penalised for the breach by way of a charge being applied to his account. The Defendant holds that these charges and indeed every other charge in question, to be punitive in nature, and wholly disproportionate to the actual loss of the Claimant in dealing with the breach.

60. The Claimant, or indeed any of the UK financial institutions, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

61. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

62. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

63. The Defendant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states charges are used to fund free banking for all personal customers as a whole.

64. Reference is made to the statement from the Office of Fair Trading, (April 2006) who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to other financial institutions charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said;

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

65. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

66. As submitted above, the Defendant believes the charges levied to his account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express or implied terms of the account contract between the Claimant and the Defendant. The Defendant vehemently refutes the Claimants contention that they are legitimate contractual service charges.

67. However, and without prejudice to the above, in the event the charges are held as being a fee for a contractual service, the Claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

68. Further, under the Unfair Terms in Consumer Contract Regulations 1999:

"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

Schedule 2 also includes such clauses, to define examples of unfair clauses, as:

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;”

“(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract”;

“(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

69. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and the Defendant had no opportunity to negotiate the clause, or indeed any of the contracts provisions.

70. It is submitted that the Claimants charges are applied, based on the Defendants experience of the system, by a largely automated and computer driven process, requiring little or no manual intervention. This process seems to consist of a computer system recognising that a payment has not been received and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of £15 by carrying out this automated process. Note that the letter received notifying of a charge is identical in every instance.

71. As set out previously, the Defendant argues that the Claimants charges can not be considered to be a service charge. In arguing that they are, the Claimant also effectively admits that their charges make the Claimant a profit. The Claimant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. It is not disputed that the Claimant is entitled to recover its damages following a breach of contract, and that it is entitled to include a liquidated damages clause. The Defendant accepts without reservation the Claimants right to recover its actual loss or losses, or a genuine, justified pre-estimate thereof. A penalty however, is unenforceable and these charges do not reflect a pre-estimate of, or are in any way related to, the Claimants loss incurred as a result of the individual breaches of contract in question. The charges are punitive, held "in-terrorem", and unduly, substantially and extravagantly enrich the Claimant. As such, they are disproportionate contractual penalties and unenforceable at law.

72. The Claimant has declined to answer the Defendants written requests for information regarding its administrative costs, or other such costs, incurred as a result of the contractual breaches from which its charges arise. Further, the Claimant has declined to offer any explanation whatsoever in regard of how its charges are calculated, or any other such justification thereof, despite these repeated requests to do so.

73. The Claimant, in their defence to the Defendants counterclaim, averred that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the Claimant. The Defendant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

74. The Defendant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Defendant believes it to be inconceivable that the charges levied to his account by the Claimant could be any form of ‘service’, rather than a penalty.

75. The Defendant understands the definition of a 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. The Defendant agreed to make regular payments to the account under the agreement, which is an express term of the agreement contract between the Defendant and the Claimant. When the Defendant failed to make such payments, therefore breaching an express term of the contract between the two parties, the Defendant was consequentially penalised for each such breach by way of a charge applied to his account.

76. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. These principles include -

"It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach"

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage”

It is submitted that the charges applied are not representative of any 'service' provided by the Claimant, but instead are punitive, and held "in-terrorem".

77. Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account in question, or the 4 accounts that were consolidated in to its balance, was valid and lawful.

78. Where the Claimant is unable to provide proof that each charge levied was valid and lawful, the Defendant will further aver that the Default Notice sent, if any, would have included these charges in the Default and Termination figures of said Notice, thereby invalidating that Notice due to the unlawful application of charges. (As outlined in paragraph 79-80, below)

DEFAULT AND TERMINATION OF THE ACCOUNT

79. The agreement in question has been unlawfully Defaulted and Terminated, in that the copy Default Notices supplied (as outlined in paragraph 12-13, above) are not accurate for the reasons stated in this document and fail to comply with s.88 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the first Notice supplied;

a. Is addressed to the Defendant’s current address – an address that the Claimant was not aware of at the date of issue, (9 August 2005) the Defendant not having lived at this address at that time; (the Defendant moved to this address in September 2005) and

b. Did not contain the correct amounts in relation to the agreement in question, at the time of issue. The outstanding balance shown on the alleged original Default Notice, dated 9 August 2005, being shown as £4,992.49 (“Exhibit X”, attached) and the statement of account provided by the Claimant, (“Exhibit X”, attached) showing an account balance, dated 6 August 2005, (with no further statement entries between 6 August 2005 and 9 August 2005) of £4,663.85 – a difference of £328.64; and

c. The Default Notice is dated 9 August 2005, but gives until 26 July 2005 to remedy the breach, therefore not providing the period of remedy prescribed under s.88; and

d. The Defendants Credit Reference file showing an original Default date of 30 April 2004; (the Default Notice being dated 9 August 2005) and

e. The Default amount being incorrect as outlined in paragraphs 77-78 of this document.

Further, the second copy Default Notices supplied (as outlined in paragraph 22-24, above) are not signed true and certified copies of the Default Notices issued and should be dismissed as being such. Where these Notices are relied on as being copies of the original Notices issued, the Defendant will argue that the Notices supplied;

a. Are examples of such Notices issued by the Claimant, only and do not meet the level of proof required to show that the Claimant has Defaulted and Terminated the agreement within the terms outlined in s.87 and s. 98 CCA 1974.

b. The Default Amount being incorrect as outlined in paragraphs 79-80 of this document.

The Claimant being bound by these Notices under s.172 CCA 1974.

80. Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendant a counter claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

PART 3:

DATA PROTECTION ACT 1998

DATA SUBJECT ACCESS REQUEST AND DATA PROTECTION ISSUES

81. The Defendant believes that the Claimant has unlawfully processed his data for the reasons outlined, in so far as it is processing, sharing and updating inaccurate and incorrect data held by third party Credit Reference Agencies,and also for the reasons given in this section.

82. The Defendant sent a s.7 Data Protection Act 1998 (herein referred to as “Data Protection Act 1998”) Subject Access Request (herein referred to as “S.A.R - (Subject Access Request)”) to the Claimant. That request being dated 11 August 2007. (“Exhibit X”, attached) This request was sent via Royal Mail First Class Post, with proof of postage dated 13 August 2007. (“Exhibit X”, attached) The Claimant had 40 days from the date of receipt of the request to provide the data supplied. (s.7(10) Data Protection Act 1998)

83. The Claimant failed to reply to the Defendants request within the prescribed timescales.

84. The Defendant wrote to the Claimant on 6 October 2007 outlining this failure and requesting compliance with the request. (“Exhibit X”, attached)

85. The Claimant failed to reply.

86. The Defendant wrote further to the Claimant, in a letter dated 15 October 2007 outlining this continued failure and enclosing a copy of a complaint made to the Information Commissioners Office (Information Commissioners Office) regarding the failure to reply within the prescribed period. (“Exhibit X” and “Exhibit X”, attached)

87. The Claimant finally provided some of data requested in a response dated 18 October 2007. This data was delivered to the Defendant on 25 October 2007 – some 73 days after the data was formally requested from the Claimant.

88. The Information Commissioners Office complaint was upheld on 31 October 2007. (“Exhibit X”, attached) As part of the process of upholding the complaint, the Information Commissioners Office wrote to the Claimant seeking an explanation as to the delay. Details of the response received are contained in a response sent from the Information Commissioners Office to the Defendant dated 15 November 2007. (“Exhibit X”, attached)

89. The Claimant has failed to provide full data as requested. Namely, details of all manual intervention that has taken place with documentary evidence of such and details of logic involved in any automated decisions made about the Defendant or the account held by him is missing. This data was specifically requested by the Defendant on 11 August 2007. (“Exhibit X”, attached)

90. The Defendant wrote to the Claimant, in a letter dated 1 November 2007, outlining the missing information. (“Exhibit X”, attached)

91. The Claimant has failed to either respond to that letter or to provide the missing information.

92. The Defendant therefore assumes, due to this failure and the lack of an explanation from the Claimant, that such data is not in existence, (other than that already provided to the Defendant in these proceedings already) and that this evidence is now irrefutable by the Claimant as they are bound by the data they have provided.

93. The Claimant, by continuing to report the account as being in Default, for the reasons stated in this document, is failing in its duty to process data accurately, as required under Data Protection Act 1998.

94. Having entered no lawful contract with the Defendant, (the alleged agreement having always been invalid as improperly executed from inception) the Claimant is now, and has always, been processing the Defendants personal data unlawfully, without the Claimant having a legitimate interest in such processing, which is in contravention of the DPA 1998.

95. The Defendant considers that the amount of the agreement is unenforceable under consumer law and that, knowing this to be the case (that is that there was no basis in law to attempt to recover any money under the agreement), it is against both the spirit and letter of the law that a creditor should be able to continue to process data, and distribute that data, including allegations of bad faith, (that is, a Default, arrears, or other adverse information) regarding a credit agreement rendered unenforceable by law.

96. It is further averred that by updating the information with the Credit Reference Agencies, the Claimant is continuing to process this data knowing that it is incorrect and inaccurate.

97. The information at the Credit Reference Agencies expressly states that the Claimant is the Creditor, and it is the data controller for the purposes of the Data Protection Act 1998. (“Exhibit X”, attached)

98. It is respectfully submitted that a debt rendered unenforceable by the express will of Parliament should not be enforced by any means whatsoever, and that the protections rendered by virtue of the Consumer Credit Act 1974 should protect the Defendant against unfounded allegations of Default or arrears made by the Claimant. The attention of the court is drawn to Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch) thus:

“What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…”

99. The Defendant contends that the Wilson v First County Trust Ltd ruling is intended to have theeffect that Creditors, such as the Claimant in the present case, who do not have an enforceable Consumer Credit Agreement are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the Credit Record and, therefore, reputation of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid, including both the principle debt and any interest due on it. The law lords further considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

100. It is the contention of the Defendant that at all relevant times this credit agreement was improperly executed, and that, therefore, there is not, and has never been, any lawful obligation to repay monies to the Claimant, and that as a consequence any allegations that such an obligation exists are unfounded as a result.

s.10 & s.12 STATUTORY NOTICES PURSUANT TO THE DATA PROTECTION ACT 1998

101. The Defendant wrote to the Claimant, in a letter dated 24 September 2007 previously outlined at paragraph 20 above, informing the Claimant of these issues. The Defendant also included a Statutory Notice pursuant to s.10 and s.12 DPA 1998. (“Exhibit X”, attached)

102. The Claimant has failed to unconditionally comply with such Notices.

IN THE ALTERNATIVE

103. In the alternative to that already stated in paragraphs 81-102 above, which is denied, where it is held that the Claimant is processing the Defendants data correctly and accurately within the terms of the DPA 1998, the Defendant will further plead against such processing as follows;

a. At no time did the Defendant grant permission, either expressly or implied, for the Claimant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract; and

b. It is the Defendants contention that the Claimants perceived right to arbitrarily choose to extend the length of that contract without the Defendants knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999); and

c. The Claimant has failed to provide the Defendant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Defendants contention that the Claimant is in breach of both the contract itself and the DPA 1998 by the Claimants continued disclosure of personal data to third parties – namely, the 3 major Credit Reference Agencies, amongst others; and

d. The Defendant, therefore, puts the Claimant to strict proof of the contractual agreement between both parties in relation to the agreement, inter alia, allowing the Claimant to store, process or disclose any personal data of the Defendant beyond the contractual termination period and to which terms and conditions were included as part of that agreement, both originally and as modified during the life of the agreement, if applicable; and

e. No admissions are made by the Defendant as to the incorporation of any term into the contract between the Defendant and the Claimant purporting to entitle the Claimant to store, process or disclose any such personal data.

PART 4:

THE DEFENDANTS REQUEST FOR A COURT ORDER

104. In view of the arguments in this document, the Defendant respectfully seeks that the Court;

a. Determines the rights of the parties to the alleged Consumer Credit Agreement and seeks a declaration from the Court under s.142 that the debt is unenforceable and that any application for an Enforcement Order under s.65 CCA 1974 will not be entertained, either now, or at any future time; and (outlined in paragraphs 40-47, above)

b. Awards damages to the Defendant in the sum of £1,000, due to the Claimants failure to Default and Terminate the Defendants account in the lawfully prescribed manner; (outlined in paragraphs 79-80, above)

c. Orders the enforcement of the Claimant’s compliance with the Defendant’s Statutory Notices under s.10 and s.12 DPA 1998; (as outlined in paragraphs 101-102, above) and

d. Awards the Defendant the amount of charges applied to the accounts in question, totalling £1,100.00 (as outlined in paragraphs 48-78, above) with interest, under the County Courts Act, of 8% per annum from the date he was deprived of the money through the application of such charges, which totals £423.05 at the time of preparation of this document, continuing to accrue at the daily rate of 0.021% until judgment or payment, whichever be later.

e. Issues an Order pursuant to the Courts powers contained within s.14(1) and s.14(3) DPA 1998 that Claimant immediately ceases and desists any processing of the Defendants personal data and requires that the Claimant further notify any third party the Claimant has disclosed such data with, to destroy that data which has been shared.

I, car2403, the Defendant in this case, believe that the facts stated in this document are true.

Signed:

car2403

(Defendant)

Dated this, the 31st day of December, in the year two thousand and seven.

I've left the bits about failing to particularise the POC correctly and respond to the CPR Part 18 request, but I think I may need to take those out of the final version as I've already submitted that information in an Application Notice that is pending an Application Hearing date to be set.

I've gone in to far too much minute detail, but it all adds to my case - I promise! I also intend to highlight every issue I have in the greatest detail to prevent them squirming on the day. (The hearing will probably be in March, but I'm focussed on being as prepared as possible to boost my confidence more. I also plan on using this as a template in my other HFC claim, along with the other claims I have ongoing, so this needs to be waterproof from the start)

I'm working on numbering the Exhibits I'm attaching separately, but I don't think I need to post those up here - suffice it to say that, where I've referred to an Exhibit, HFC/Restons have shot themselves in the foot where I've needed to use an Exhibit of theirs. I won't post these up here as I don't want to tip them off. (They are probably reading this thread in the same way you are already)

robcag · January 3, 2008

Ok, here goes - deep breath...

I've left the bits about failing to particularise the POC correctly and respond to the CPR Part 18 request, but I think I may need to take those out of the final version as I've already submitted that information in an Application Notice that is pending an Application Hearing date to be set.

I've gone in to far too much minute detail, but it all adds to my case - I promise! I also intend to highlight every issue I have in the greatest detail to prevent them squirming on the day. (The hearing will probably be in March, but I'm focussed on being as prepared as possible to boost my confidence more. I also plan on using this as a template in my other HFC claim, along with the other claims I have ongoing, so this needs to be waterproof from the start)

I'm working on numbering the Exhibits I'm attaching separately, but I don't think I need to post those up here - suffice it to say that, where I've referred to an Exhibit, HFC/Restons have shot themselves in the foot where I've needed to use an Exhibit of theirs. I won't post these up here as I don't want to tip them off. (They are probably reading this thread in the same way you are already)

Hi car

I've started reading your long post above but it's taking me a while as I'm trying to take in as much as I can, so I'll do it in more than 1 session!

However, so far I noticed some minor points which you may pick up in the final draft. I think you need to check the references you make in para 23 (and possibly para 24?). I'm not nit-picking, but would hate you to miss it in your final draft!

I'll read more when I get some more clear time, very interesting so far as I have also had dealings with Restons (as you know because you replied in one of my threads).

In both cases where Restons have been involved they have behaved as you have described above, ie tried to mislead etc.

In my first case (before I found CAG) they persuaded me that if I admitted the default amount, they would drop the 'Collection Charge', (which they said was a standard charge which they were entitled to make), and in my other on-going case they have written to me telling me "Your defence therefore appears to be a sham with the deliberate intent of preventing our Client from obtaining a Judgement". Well we'll see about that!

Good luck and keep going!

Rob

Edit: Typo

car2403 · January 3, 2008

Thanks Rob - I've changed Paragraph 23 to;

The matters outlined in paragraph 22, appearing as statements from the Creditor, are binding on the Claimant under s.172 CCA 1974

I've just had the hearing date for both Applications set for the morning of 26 February - I intend to use the Skeleton Argument (with any further amendments recommended here to make it read right) during that hearing.

The 2 Applications are;

My Application, which is detailed here: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1268593
An Application from Restons under CPR Part 24 (Summary Judgment) and an Order that the Counterclaim is struck out. Restons have attached
- A copy of the agreement they sent in reply to the CCA request (http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default.html#post1107155)
- A copy of the Default Notice they sent in reply to the CCA request (http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default.html#post1107155)
- A statement of account that matches the others I have, but is in a different format (they seem to have now gone back on what they said here: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default.html#post1156004 - but I'm prepared for this evidence now)
- A copy of their cover letter sent in reply to the CCA request

STILL no further paricularised POC!

How can they seek Summary Judgment, saying that I do not have a realistic prospect of successfully defending when they haven't particularised anything to defend against - and I have this 20-page Skeleton Argument and Statement of Evidence to support my defence and counterclaim against them?

I'll be seeking strike out of their claim, with a s.142 unenforceability declaration and continuance on my counterclaim alone.

car2403 · January 3, 2008

Defence is now in; (represented by DG Solicitors)

The AQ (N149) has to be back by 7 January. I'll probably be using the same one I'm using with my other HFC claim for that;

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1274737

Quick update on claim 2. (car2403 -vs- HFC)

The AQ went in on time and should be getting reviewed next week - I was well ahead of myself on that one, as I wasn't sure I could print it while being on annual leave for Crimbo.

I sent off a CPR Part 18 request for more info to DG Solicitors and I've had a reply to say they won't comply as the claim "falls within the Small Claims Track limit" so they won't reply under CPR r27.2(3). This is exactly what I thought would happen, but how can they refuse to reply under Part 18 when the claim hasn't been allocated yet?

robcag · January 3, 2008

STILL no further paricularised POC!

How can they seek Summary Judgment, saying that I do not have a realistic prospect of successfully defending when they haven't particularised anything to defend against - and I have this 20-page Skeleton Argument and Statement of Evidence to support my defence and counterclaim against them?

I'll be seeking strike out of their claim, with a s.142 unenforceability declaration and continuance on my counterclaim alone.

Restons also threatened that they would seek Summary Judgment in their ongoing claim against me, and again the PoC are vague, in a letter from them received by me on 22/12/07, which is why I had to compile (or rather pt2537 did for me! ) and submit an application for an 'Amended Defence' over the Christmas holiday period.

Rob

car2403 · January 3, 2008

I've seen them manage other claims, so I filed a holding defence but put a "in the alternative" in it that was about 8 pages long, knowing they'd go for Summary Judgment as done in the other cases.

I can see them trying to put as many spanners in the works as possible, as they clearly don't have a case and want me to fold before this gets to trial. "Intimadatory" doesn't cover it, IMHO - I will be making a formal complaint over their "litigation tactics" to the Law Society once all this is over.

car2403 · January 5, 2008

Claim 1 update - HFC -vs- car2403;

I've received service of the Application Notice including a complete Part C section, as follows; [My thoughts in red]

We wish to rely on the following evidence in support of this application

[Are you sure? There isn't much here?!]

A claim has been issued against the Defendant in the sum of £5053.73 together with a claim fee of £240.00 and costs of £100.00.

[No, there is only 1 claim - not 2, as implied here]

The sum claimed is the balance due and owing to the Claimant under a Personal Loan Agreement with account number ******** and dated 25 March 2003.

[The Balance is wrong, as I've paid them over £1,100 that they haven't taken off this claim! This makes the entire claim wrong - and I can prove it! Also, "balance due" is right - the "balance" isn't enforceable however!]

The Agreement provided the Defendant with a loan of £5,177.00 which together with interest charges of £583.72 was repayable by way of 108 monthly instalments of £53 .34 making a total amount repayable of £5,760 .72.

[Agreed]

A Default Notice was issued on 09 August 2005 which required payment of total arrears of £168.00 by 19 August 2005 failing which the Agreement would be terminated and the full outstanding balance of £4,992.49 would become immediately due and payable. As an alternative the Defendant was given the opportunity of clearing the account by paying the sum of £4,708.12 which included the statutory rebate allowable under the Terms of the Consumer Credit Act 1974.

[Really? Because the Default Notice you sent me originally was issued on 9 August 2005 and gave me until 26 July 2005 to remedy the breach? :o

This is also the same Default Notice you've attached to the Application Notice, so I can't see how you can rely on this statement.

Not forgetting, all this while, that the arrears on the account and the account balance contain default charges which make this Notice unlawful.

The Default Notice is addressed to an address that I didn't live at until 3 months after the date of issue.

I think it's funny that they are relying on the CCA to cover off the statutory rebate allowance - thereby conveniently ignoring the fact that the rest of the Notice is in no way compliant with the other parts of that Act!

Tsk, tsk, Restons!]

The Defendant failed to make the required payment and accordingly proceedings were issued for the outstanding default balance of £4,992.49 together with a collection charge of £832.24 and less payments made since the date of the Default Notice totalling £771.00 (described in the claim form as post referral credits).

[Agreed I didn't meet the (unlawful) demand for money - but that was in August 2005, so why have you issued against me now? Could it be because I've sent you a CCA request? (Which you are still in default of, as no terms have been supplied, so this whole case is a big waste of the Courts time!)

Also, what is that "collection charge" for? Your office Christmas Party, that's what?!]

A Defence has been filed by the Defendant whereby the full amount of the claim is disputed. The Defendant has questioned the brief nature of the Particulars of Claim. This claim was issued via the Claim Production Centre in Northampton and accordingly brief particulars have been provided, however the Claimant denies that it has not fulfilled its requirement to adequately plead its case. The Claimant also denies that the Personal Loan Agreement and the Default Notice have been incorrectly executed as suggested in the Defence. Copies of the Agreement and Default Notice were sent to the Defendant in accordance with his request by way of letter dated 30 August 2007. The letter also requested a review of the Defendant’s instalment arrangement which at that time was £33.00 per month however the Defendant failed to respond. The Claimant also submits that the Counterclaim shows no prospect of success and the Claimant submits that the Counterclaim should be struck out.

[At last they acknowledge my dispute. Also, why does issuing through the Bulk CC centre mean you only have a 8 line POC? So, sending a copy of the agreement automatically means they are enforceable? (Not in my, or the CCA's book!) I did respond to their letter of 30 August, on the 1 September, but their office has conveniently "misplaced" it and it never reached the person it should have. The Defence/Counterclaim is 20 pages long, so that's about 100 times longer than your POC - how will this be struck out, exactly?]

Attached in support of this Application are copies of the Loan Agreement, Default Notice, statement of account and letter dated 30 August 2007.

[Oh, they are pulling out the big guns now... "Old faithful" unenforceable agreement, a "Blue Peter" ("here's one I made earlier") Default Notice and a statement of account that only covers the last 23 months - not the entire account.]

In the circumstances I do not believe that the Defendant has any real prospects of successfully defending the claim and the Applicant knows of no other reason why the disposal of the claim should await trial.

[We'll find out on 26 February then!]

TAKE NOTICE THAT IF THE RESPONDENT TO THIS APPLICATION FOR SUMMARY JUDGMENT WISHES TO RELY ON WRITTEN EVIDENCE AT THE HEARING, IT MUST FILE A WITNESS STATEMENT AND SERVE COPIES ON THE CLAIMANT’S SOLICITORS, MESSRS RESTONS SOLICITORS LIMITED OF TRINITY CHAMBERS, 800 MANDARIN COURT, CENTRE PARK, WARRINGTON WAI 1GG AT LEAST SEVEN DAYS

BEFORE THE DATE SET FOR THE SUMMARY JUDGMENT HEARING

[is this true, as the Court hasn't ordered me to? I probably will anyway, as they might realise what a mess they are in if I do...]

Now this doesn't form part of the Application Notice I've received from the Court, which has omitted Part C, so I wonder what is happening here? I might just ring the Court to see what they have - and if it matches this - as I'm suspicious, seemly with good reason.

The Application Hearing date (also hearing my Application for striking the claim out/staying it as it isn't particularised correctly) is set for 26/02/07.

I might just submit my skeleton argument (post #140, above) in response to this and let the Court decide if a full hearing should go ahead and dismiss HFCs Application - I know what their case is and they've given it away in this Application Notice, so I suppose I can argue that they've particularised their claim correctly now and a full hearing is required.

I've also received a response to a letter telling them I'm willing to settle for £1,000 in damages - (the letter I sent to them with service of my AQ at Post #127 above) their reply is that they will agree to settle by reducing the amount of the claim by £1k and me paying them £4,053.73. This is just a "one-finger salute" to me, IMHO, as they haven't taken anything on board from my defence/counterclaim submissions. They seemly only want the money and don't want to address any of the issues I've raised, so lets see what the Court decides. I'll also be using this against them when the Court comes to consider my application for wasted costs, which I plan to have ready for submission on the day of the final hearing when I win - (Even if it is allocated to the small claims track) I'm almost sure that Restons will be doing the same, though. (Hello Mr Wild, if your watching!)

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