CCJ FORM/GE MONEY,urgent help req

poptart1_2

Please can anyone help me with this, tomorrow I have to complete the blue form from Northampton county court (ccj?) its regarding a debt from GE money, then referred to Viking but the form has Howard Cohen & co on it on the sig line.
I asked GE money for a CCA earlier this year but all they provided me with was the terms and conditions of the store card and said this was all they were obliged to provide, I have recently replied to that saying I wanted a proper CCA but have had no reply as yet, should I writre this on the blue form on the defence and counterclaim section? Would it stall things or stop the ccj or the case? This is the first time things have got this far and I dont know what to do, so advise would be very welcome.Thanks in anticipation.

poptart1_2

By the way its a store card and only for £467.73

shinyhead

As stated by others here, if there's no CCA then a court shouldn't enforce it.

Whatever you do don't send back the Admission bit.

They've sent it through Northampton as it's the bulk centre and if you simply admit then it's likely some spotty legal clerk will declare a payment you can't afford.

You need to send back the defence and counterclaim as you've said and demand they prove the debt is yours by producing a copy of the legally executed consumer credit agreement with your signature on it. I know you've already asked for one and that probably means there isn't one. I also suggest that you demand that they submit to the court any documentation relating to the account. I believe if you defend the case then it's automatically transferred to a county court near to where you live but I'd advise that you don't assume that and ask for that to happen on the paperwork. Don't even hint on the paperwork that the debt is yours-simply say since they've failed to produce the CCA the account is in dispute. Have you kept paying? If so then if it gets to court you could claim that you were bullied by DCA tactics and only did it to keep them off your back (quite probably true!). Also if it gets to court and they can't produce the CCA with your signature on it the judge might simply ask if the debt is yours. This might take some guts but if they can't you could simply say no and there's probably !!!!!! all they can do.

It's for them to prove it-you're innocent until proven guilty.

In all this I'm assuming that you took out the card before 2007.

poptart1_2

thanks shineyhead, i will follow your advice, the storecard was taken out about the year 2000, very gratful

poptart1_2

any idea how I can phrase that on the form, sorry but I am a numpty at this, every time I look at the form I break out in a sweat

shinyhead

Well, you did ask!!

Try this; thanks to louise1111 and copied from the thread ccj helppppp!. Have a read, I think you might have to tweak it in a couple of places but it certainly looks and sounds good!
QUOTE:
i think the most important thing is the credit agreement. this has to be produced in court if it gets this far!

In the Northampton County Court

XXXXXXXXXX Claim number

Between

XXXXXXXXXX- Claimant

and

XXXXXXXXXXXX - Defendant

Defence

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;


a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.


4. In respect of that which is denied, on XXXXXXXX I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 77(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

5. Section 77 (4) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

s77 (4) If the creditor under an agreement fails to comply with subsection (1)-

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

6. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s77 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

7. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

8. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on XXXXXXXX the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. (Attached marked 1)

9. To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

10. The claimants failure to provide the credit agreement and other documents referred to within it, along with copies of the default notice impacts upon the courts ability to make an enforcement order and places me at a distinct disadvantage as I am a litigant in person

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the amount of credit and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

12. I note that these prescribed terms must also be within the Agreement and not in for example a separate document. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated
consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting
the provisions of the two schedules the Judge said:


"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which
are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the
minimum terms) are to be found in Schedule 1."


13. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

14. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."


15. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

16. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

17. Notwithstanding point 16, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

18. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA 1974.section 87 makes it clear that a default notice must be served before a credit can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

19. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119


20. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

21. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

22. Additionally since the claimant has failed to discharge its obligations under Section 77(1) Consumer Credit Act as stated in point 6 and 7 of this defence, it is requested that the claimant case be struck out pursuant to section 77(4) Consumer Credit Act 1974

23. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

24. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.


25. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

26. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

for the attention of the court I reproduce schedule 3 section 11

11
The repeal by this Act of-
(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,
(b) Subsections (3) to (5) of that section, and
(c) The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.









Statement of Truth


I XXXXXXXX, believe the above statement to be true and factual


Signed .....................

Date

END OF QUOTE.

Did GE send you/have you received a default notice? If not then it can be a pointer that no CCA is available.

shinyhead

Well I never!!

If you were worried about having to type that all in on your PC then I've just found out you can copy and paste it into a word document! If you don't have word it might also work on another type of word processing package but no guarantees I'm afraid.

I had a selfish motive to try that as I might need something like that soon!