Re: Recently at court

by Snowfire Sun Mar 04, 2018 5:11 pm

I recently went to court (and was sent away to write a new witness statement, have to go back soon), and when I asked the judge if the Claimant had provided a Deed of Assignment in their evidence bundle, he said "No, but sometimes they do, and sometimes they don't, it's not mandatory"

That's why I'm scouting these subjects on here, to find hard proof to throw at him on the next round!!

Will have a look at the 3 letters. Thanks!

by Tiggy Sun Mar 04, 2018 6:13 pm

What have they produced, what did you submit in your original defence?

by Snowfire Sun Mar 04, 2018 8:54 pm

Hello Tiggy.

This was my defence.

Preliminary Matters

1. The Claimants claim form fails to adequately set out the nature of the Claim.

2. The Defendant avers that the Claimants pleadings are an abuse of process. The Claimants pleadings are lacking detail, there are no details as to when the alleged default occurred, or the degree of default, despite requests for information from the Defendant, the Claimant has not provided any details as to how the sums claimed have accrued. Accordingly the Defendant contends that the pleadings are wholly inadequate for a contested matter and that the Claimant should be required to plead its case coherently and accurately. The Defendant reserves the right to replead their defence should the Claimant replead its claim adequately.

The Claim

3. The Claimant states the claim relates to a credit card account with .........., but without further details the Defendant is unable to identify such an account within her own records.

4. The particulars of claim fail to state when the agreement was entered into or what the agreement was for.

5. The particulars of claim state that the account was assigned/purchased by ..............on 26/01/16 and notice served to the Defendant.. The Defendant does not recall receiving notice of this assignment.

6. Upon the Claimant clarifying matters set out above the Defendant reserves his position to amend this Defence further. The Defendant shall seek the costs of the amendments from the Claimant due to the Claimants failure to plead its case adequately.

7. In respect of matters, which the Defendant is able to plead to, on the 30^th August 2016 the Defendant sent “recorded delivery” requests for information to the Claimant. The request was made pursuant to s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under and to obtain further information about the terms of the contract.

8. The Claimant failed to comply with their Legal Duties to provide the agreement within the prescribed time of 12 days.

On the 19^th December 2016, the Court ordered the Claimant to provide to the Defendant a copy of the agreement by 4pm on the 30^th December 2016, and no contract was provided.

9. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

10. The Defendant has not yet been able to examine the terms and conditions which were in force at the time that the agreement was executed and therefore reserves the right to amend these pleadings to address any breaches that are identified if such terms and conditions are disclosed by the Claimant. The amendment will be due to the lack of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the costs of such amendment from the Claimant.

11. The Defendant has also sent a request for inspection of documents on the 30^th August 2016 to the claimant's solicitors, ......... as allowed under CPR 18. The Claimant replied to this letter refusing to send the complete list of documents including the Default Notice, alluded to in the Particulars of Claim.

12. For the avoidance of doubt the Defendant requires the Claimant to plead effectively and disclose the legible documents upon which the Claim is based. In the event the Claimant fails to replead, then the Defendant reserves the right to apply for whatever orders it deems fit including an order striking the Claim out.

Default Notice

13. It is denied that the original creditor .........., served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

14. Due to the Claimants failure to allow the Defendant to inspect the Default notice alluded to within the Claim form the Defendant is prejudiced.

15. Accordingly the Defendant reserves her position to amend this Defence with the costs of the same paid by the Claimant if the Claimant provides a copy of the Default Notice.

Conclusion

Accordingly, the Defendant avers that

20. The Claimant has failed to plead properly in this matter and has failed to provide sufficient information relating to this debt.

21. The Claimant has not complied with s78 or 86, and 87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.

22. Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendant's costs.

_________________________________________________________________________________________________________________________________________________________________

We went to court anyway, in August 2017. This was where I pointed out that there was no provision in the contract for a transfer to a Third Party etc.

The judge then told the Solicitor "The Defendant has reserved their position" and advised me to submit a new defense.

They submitted their trial bundle to me 3 days before court (instead of the 14) Which contained the Particulars of Claim, the notice of assignment (a copy of the email version they sent to me, with no "Sender's" address, only their internal mail signature), a copy of the original contract signed by "both parties" .. allegedly, Notice of Default from the OC, and 5 typed out pages, aleggedly representing statements from the OC, of transactions. A Notice of Acting (never recieved).

The judge accepted all of this "Evidence" at face value, and when challenged on the authenticity of the documents replied "Be careful about accusing the Claimant of fraud.. That's very serious"... He completely ignored the times the claimant didn't comply with the court's orders, and when further challenged on the fact that to that day, I had not been sent a copy of the Original Credit Agreement, dismissed my comment with, "they have signed a document saying they did".... Aarrgghhhh....

I am in the process of compiling a letter to the DC, advising them to rescind their claim and why, and by tomorrow, all being well, I will post it here.

by Tiggy Sun Mar 04, 2018 10:16 pm

So you need to examine both the agreement and default notice to establish whether they comply with the enforceability provisions of the Consumer Credit Act.

You say the OC is in administration, who then assigned the debt and was it before or after they went into administration?

by Snowfire Sun Mar 04, 2018 10:33 pm

Hi Tiggy,

I presumed you were asking ME for details of MY case, but it looks like you were asking "Dianne 1935" - The original poster- as MY DC is (unfortunalely) still fully functional! Sorry for the confusion! xx

by Ausk Mon Mar 05, 2018 6:53 am

They submitted their trial bundle to me 3 days before court (instead of the 14).

They always do this.

Handle this by requesting an adjournment in the interests of fair play considering you have been requesting this material for x length of time.

You need the adjournment to study in detail, the materials provided to ensure you have the fullest opportunity to identify any need to amend or resubmit your defence in order to give yourself an opportunity to mount the best possible defence for yourself - something like that.

by Tiggy Mon Mar 05, 2018 9:00 am

Snowfire wrote:Hi Tiggy,

I presumed you were asking ME for details of MY case, but it looks like you were asking "Dianne 1935" - The original poster- as MY DC is (unfortunalely) still fully functional! Sorry for the confusion! xx

OK, I've split this from the previous thread, hadn't realised you'd tagged onto someone else's thread.

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