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Mortimer Clarke
Faithfull
Posts: 1 Newbie
Ok been dealing with Mortimer Clarke. The truth is they do not have any legal credit agreements in place. They sent be court papers and bumped out the amount owed from 11k to 15k. I quickly put in a defense denying the debt and mentioned that they needed to produce a credit agreement. Sample letter of defense to court:
County Court Business Centre
21-27 St Katharine's Street
Northampton
NN1 2LH
00 May 2014
In the County Court Business Centre
Claim number
Between MARLIN EUROPE II LIMITED – Claimant
and (YOUR NAME)- 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. Consequently, I deny all allegations on the particulars of claim and do not know what
case I have to meet.
5. In respect of that which is denied, on 13
provide a true copy of the executed credit agreement, which they claim exists between
parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit
(Prescribed Periods for Giving Information) Regulations sets out that the claimant must
comply with such request in 7 working days of receipt of such request. Copies of the
th May 2014 I requested that the claimant
letter, proof of postage and proof of delivery attached marked Exhibit mysurname 1, 2 &
3
6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to
comply with such request and states
s78 (6) 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.
7. 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 s78 (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
8. 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
9. Further more, the Civil Procedureicon Rules in particular practice direct 32 requires
that access is granted to the original documents, therefore I require the claimant to
provide the defendant sight of the original credit agreement and any terms and
conditions that they seek to rely upon in this action pursuant to PD 32
10. The courts attention is drawn to the fact that the without disclosure of the requested
documentation pursuant to the Consumer Credit Act 1974 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 credit limit or the manner in
which it will be determined or that there is no credit limit, A term stating the rate of any
interesticon on the credit to be provided under the agreement and A term stating how
the debtor is to discharge his obligations under the agreement to make the repayments,
which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and
any power of the creditor to vary what is payable
11. The courts attention is also drawn to the fact that where an agreement does not have
the prescribed terms as stated in point 10 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
12. 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, signatureicon of a document
containing all the prescribed terms is an essential prerequisite to the court's power to
make an enforcement order."
13. 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
14. It is neither admitted nor 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
15. Notwithstanding point 13, 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)
16. 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
17. 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
18. 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.
19. Alternatively if the court decides not to strike out the claimant’s case, it is requested
that the court orders full disclosure of the requested documents pursuant to the Civil
Procedure Rules
20. 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
collectionicon 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.
21. I respectfully ask the permission of the court to amend this defence when the
claimant provides full disclosure of the requested documents
Statement of Truth
Your name
When you send this to the courts then send the !!!!!!s the CPR request for them to produce the original credit agreement. I have been waiting for 5 months and I know they do not have it.
County Court Business Centre
21-27 St Katharine's Street
Northampton
NN1 2LH
00 May 2014
In the County Court Business Centre
Claim number
Between MARLIN EUROPE II LIMITED – Claimant
and (YOUR NAME)- 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. Consequently, I deny all allegations on the particulars of claim and do not know what
case I have to meet.
5. In respect of that which is denied, on 13
provide a true copy of the executed credit agreement, which they claim exists between
parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit
(Prescribed Periods for Giving Information) Regulations sets out that the claimant must
comply with such request in 7 working days of receipt of such request. Copies of the
th May 2014 I requested that the claimant
letter, proof of postage and proof of delivery attached marked Exhibit mysurname 1, 2 &
3
6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to
comply with such request and states
s78 (6) 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.
7. 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 s78 (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
8. 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
9. Further more, the Civil Procedureicon Rules in particular practice direct 32 requires
that access is granted to the original documents, therefore I require the claimant to
provide the defendant sight of the original credit agreement and any terms and
conditions that they seek to rely upon in this action pursuant to PD 32
10. The courts attention is drawn to the fact that the without disclosure of the requested
documentation pursuant to the Consumer Credit Act 1974 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 credit limit or the manner in
which it will be determined or that there is no credit limit, A term stating the rate of any
interesticon on the credit to be provided under the agreement and A term stating how
the debtor is to discharge his obligations under the agreement to make the repayments,
which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and
any power of the creditor to vary what is payable
11. The courts attention is also drawn to the fact that where an agreement does not have
the prescribed terms as stated in point 10 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
12. 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, signatureicon of a document
containing all the prescribed terms is an essential prerequisite to the court's power to
make an enforcement order."
13. 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
14. It is neither admitted nor 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
15. Notwithstanding point 13, 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)
16. 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
17. 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
18. 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.
19. Alternatively if the court decides not to strike out the claimant’s case, it is requested
that the court orders full disclosure of the requested documents pursuant to the Civil
Procedure Rules
20. 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
collectionicon 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.
21. I respectfully ask the permission of the court to amend this defence when the
claimant provides full disclosure of the requested documents
Statement of Truth
Your name
When you send this to the courts then send the !!!!!!s the CPR request for them to produce the original credit agreement. I have been waiting for 5 months and I know they do not have it.
0
Comments
-
I am replying to the letter Faithfull wrote on 30-10-2014
That means I got questions about it
first of all wow, what a letter, amazing, thanks you for that
question: Did a lawyer help you write it
More questions:
1
I spoke with a lawyer who told me that it is not a defence to
say I don't know if I owe the money, because he claims that this is admitting liability, and that you have to be clear i the defence and
say I do not admit any liability.
Any views on that?
2
Can I submit this after I had judgment, while I am asking to set aside the judgement.
Can I use this letter?
3
This solicitor also claims that when asking for proof by way of 78 request letter, if you do not send £1, the request will not stand in court and they can enforce judgement.
Is that correct? Because the other view is, that if you send the £1
you get into agreement with them, and then thy can sue you
Thanks everyone for your help
Laura0
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