1st Credit Ltd - Summons Issued **WON **They Discontinued**

[tomterm8]

Originally Posted by tomterm8

There's also an legal advantage to a part 36 offer PART 36 - OFFERS TO SETTLE .

scrub that; Paul has just pointed out the case is under £5k; I had (mis)read it as 7.2k. If it's SCT, then there are very reduced cost implications anyway, and so no point.

[nimjacole]

Thanks for all of the above.

I have emailed Paul and have to log now to do some housework!!!

Will check in later.

Have a nice day.

[pt2537]

In the xxxxxxxxx County Court

Claim Number

Nimjacole v 1st Credit

Dear Sir


Thank you for your letter dated xx January 2008 the contents of which I note

As you are fully aware, it is my intention to defend this action You will note that on xx/xx/ 2007 / 8 (EDIT TO SUIT) I wrote to you requesting that you supply me a copy of the credit agreement in relation to this account, a copy of the default notice issued, a copy of any notice of assignment and other supporting information. For your information I have attached a copy of that letter. I requested these documents to allow me to fully investigate this claim as no supporting documents were supplied with the claim form.

I note that you claim to be reliant upon the fact that I made an offer to settle this account in approx 2003. I am unable to comment on that, as I have no memory of such events happening. Therefore it is my belief that this claim is statute barred pursuant to section 5 of the Limitation Act 1980 and the burden of proof falls upon you to prove otherwise. Also, I am aware that without production of a compliant credit agreement, which complies with the requirements of the Consumer credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) among others, the courts power of enforcement is seriously restricted. Infact failure of an agreement to contain the prescribed terms set out in SI 1983/1553 and signed by the debtor and creditor in the prescribed manner, the agreement would be totally unenforceable by way of S127 (3) Consumer Credit Act 1974.

I agree that this case needs to be resolved, it would also be beneficial for all parties concern if this could be done without the need for court,and to that end, if you would kindly supply the requested information I will be able to fully investigate you claims and take the appropriate action accordingly. At present you have failed to supply the requested documentation, I do not feel it is unreasonable to ask for this after all I am a litigant in person.


On the issue of costs, I note that it is highly likely for the case to be allocated to the Small Claims tack and that under that Track, costs are limited and further more since I do not believe my actions are unreasonable I feel that it is highly likely that any costs awarded would be limited, if at all
I trust you will consider my request, as I am unable to enter into any negotiations over this debt until such time as you provide the requested information, however, if you supply the requested information and I find that I am indeed indebted to your client’s organisation I will look to resolve this matter amicably


Regards


xxxxxxxxxxxxx

well i was thinking of something along those lines

any opinions?

[nimjacole]

This sounds good to me. I will let you know their response. I will give others time to give thoughts, if they so wish, before I send it off.


Thanks

[nimjacole]

Hi all

I sent the above letter please see response. I also received an without prejudice reply basically indicating that they realise that I might not be in a position to pay the full amount but to avoid further litigation then are prepared to accept whatever I can offer and if i cannot make a full lump sum then instalments is fine. However, I was still confused by their first letter which is as follows:-

.Thank you for your letter of 14th January...

...it would appear that you are misadvised. An agreement enabling a debtor to overdraw on a banking current account is exempt from Part V of the Consumer Credit Act 1974 where the director so determines, pursuant to the CCA Regs 1983 (SI 1983/1554).

The claim does relate to an overdrawn current account where the director did make such a determination and therefore the court's power of enforcement is not "seriously restricted" as you suggest.

We recognise that costs may be an issue should the claim be allocated to the small claims track. While our client may not recover all costs, our client will potentially incur a £500 hearing fee and £200 allocation questionnaire fee among other costs. Pursuant to CPR 27.14, these costs and fixed costs pursuant to CPR 45 will be added to the debt.

We invite you to reconsider entering into negotiations with our client and look forward to hearing from you.

I have today received the allocation questionnaire from the court and was actually filling it when the above letters arrived. The case will be heard nearer to me and I have indicated that I am agreeable to the case being heard in the small claims court.

The without prejudice letter also indicates that should a judgement be obtained against me then they intend to place a charging order over the property.

My concerns are once again the costs issue and if I do lose the case then these will be borne by me! The second confusion arises from the above letter in that it talks about is being overdrawn on a banking account. Although this was in effect a loan from HSBC why are they now taking about an overdrawn amount, i'm a bit confused as as far I was concerned this was a loan taken out by me sometime in 99 and which was defaulted on, I never had an overdraft, as far as I can remember with the bank at the time!

Look forward to hearing from you.

[pt2537]

hmm, i am confused,

i too thought that you said it was a loan,

so is it possible that it is they are right and its not a loan, or are they trying to get out of the regulation of the consumer credit Act 1974 because they know that a claim under the CCA would fail because they dont have an agreement

now , your concerns,

can you afford to pay them?

if yes then do it


but i guess the answer will be no,

so there is little you can do, they are taking legal action, they have not provided any documents yet have they ? if they havent supplied any documents then how can they prove you owe? how do we know its not statute barred?

sorry to sound blunt but as i see it, at this point you have very little option apart from defending this case but it is up to you,

now on the matter of allocation questionnaires

you say you have one? is it a N149 or N150. i have some special documents that you can include with the AQ, they are directions which i wrote but i need to know which form you are using

regards
paul

[nimjacole]

Thanks for your reply.

Yes, I too was a little concerned about what they were saying as stated, I never had an overdraft with the bank. As far as I am aware this was a credit agreement with HSBC and not as they state. Not sure where they have got this from.

No, they have not provided me with the relevant documents, once again.

I will defend this case!

The Form sent to me by the Court is a N149.

Regards,

[pt2537]

ok, well its a wee bit late for me to dig out the directions et al tonight, remind me tomorrow and i will post up all what you need and go through it with you.

regards
paul

[nimjacole]

speak tomorrow

[pt2537]

In the ************* County Court
Claim number **********

Between

************* - Claimant

and

xxxxxxxxxx - 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
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
• 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.
• 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.

and

XXXXXXXXXX -v- XXXXXXX
Claim No: xxxxxxxxx

N149 Allocation Questionnaire

Section G - other information
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 as without production of the requested documentation will inhibit 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 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

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. 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 and63, 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

then in the box for section G write

Please find the following attached to this allocation questionnaire;

1) Section G - other information
2) Draft order for directions

This allocation questionnaire and its attachments were sent to the defendant on **/**/**.

[nimjacole]

Hi

Thanks very much I have typed the above up and will send out tomorrow. Is there a fee payable for the submission of the questionnaire I was just wondering if there is, if so, whether you know what it is as the Court did not provide the leaflet EX50 with the questionnaire.

I wasnt sure whether I pay this fee or the claimants pay it?

Thanks

[pt2537]

no the fee is for the Claimant to pay, they are the ones bringing the claim after all.

you dont need to worry about the fee

[nimjacole]

Thats great. The case has now been listed to be heard a bit nearer to me now so I will come back to you just as soon as I have heard from the Court with directions.

Regards
Madge

[Finlay07]

Hi

I don't want to hijack this important thread but I just thought you may like to know that 1st Credit accused me of having a huge overdraft when I knew full well that I didn't. They caved in because they couldn't provide any documents (then neither could the bank!) but it may be a new tactic of the loveable 1st Credit.

[nimjacole]

No, feel free this is an open thread as far as I am concerned.

Its very disbelieving that they can do this. I know and I am sure that they do as well, that at no time did I have an overdraft. I would remember a £5,000 overdraft!! in any event. I think it very unfair that they can do this.

I am more than willing to enter into negotiations with them should they provide any legal documents to the contra