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

[nimjacole]

This is my first post and I thought that I would say hi to all who have contributed so far and what a fantastic site I have read and read and I think the best thing without me becoming totally confused by the overwhelming advice is to firstly post my problem.

The first thing that I would like some help on is a debt matter. The story goes…well back in 1998/99 I took out a loan with HSBC and that loan now has become defaulted on. It was a long story and I basically had forgotten all about it as I was going through huge changes in my life with a new baby, selling my property and moving to a different country. Anyway, I have since come back in this country and now out of the blue I have received a summons issued in the Northampton Count Country issued against me by 1st Credit Finance Limited in the sum of over £5,000 when the original debt was £4,000.

I have looked on the forum and have indeed used the wonderful template provided and have requested further information of this debt from 1st credit but all they have provided me is the transcription of conversation some searches done on me and a copy of the assignment letter which I very much doubt they sent as they sent it to an incorrect address even though it is clear from the searches that they had the correct address at the time but stills sent it to an incorrect address, which just leads me to believe that this was done recently!

The second not convincing thing, is that they say, without documents to back this up, is that the account with HSBC was closed in 2003 which I don’t think was the case and it was more likely to have been closed well before this time, I am uncertain, this is the problem, I just cannot remember the dates etc, save to say it was back in 98/99.

I have requested further documents and again documentation relating to the original credit agreement which they say I should request direct from HSBC and they will provide allthe documents they intend to relay upon when ordered by the court during disclosure. They also say the they have requested further docuentation from the original creditor and will forward them onto me. They also go to say that they do not hold any proof of postage as letters were not sent to me by recorded delivery.

Can anyone help with this regard? I have put in an acknowledgement of service and intend to defend this case, even if I have to pay back the original amount and not the inflated amount I don’t believe I owe them at all. I just want to make sure that this inflated sum currently £5,376.61 (this includes court fees and solicitors costs) from the original sum of £4,000 from which I have paid roughly £1,200 in 1998/99 is the correct amount that they can legally claim and whether they are suing me under the correct law (which they say is under s.136 LPA 1925) this is quoted in the letter received and not the claim form.

The claim form does not provide any dates no details of credit agreements with HSBC all it is states is that they are entitled to 8% per annum pursuant to Section 69 of the County Courts Act 1984 amounting to over £500 and interest at a daily rate of 99p.

Can anyone help me with drafting a Defence to the action or a letter bringing up the above points? I know what I want to say but I cannot say it or the legal terminology!


Thanks very much.

[gizmo111]

Can you post the exact POC on their claim form.
When did you last make a payment? Do you think it was before Nov 2001?

[nimjacole]

Thanks so much for you reply, so so appreciated....as requested...

""The Defence was indebted to HSBC for credit advanced. The debt was assigned to the Claimant. Notice of assignment was given to the Defendant. T he Claimant claims the debt due from the Defendant of £4,524.29 together with the interest at the rate of 8% per annum pursaunt to Section 69 of the County Courts Act 1984 amounting to £554.40 and also claims further interest until Judgment or sonner payment at the daily rate of 0.99""

the last payment i believe was probably in 1999/2000 a little before I had my baby, it certainly wasnt in 2001!

[pt2537]

right then, if the last acknowledgment/payment of the debt was before Nov 2001, there is a high chance that the account is statute barred by now

the POCs are not very informative either

bear with me and i will search for the letter you need to send these

regards
paul

[Curlyben]

Throw this at them NOW on next day guaranteed delivery.

REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES.

Dear Sir/Madam,

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. This letter supersedes the Data Protection request made to on the **DATE**. The information must be furnished by the **DATE**, which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
2. All records you hold on me relevant to this case, including but not limited to:
a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.
b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations
c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require 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 my account formerly held with **CREDITOR**.
d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.
e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
f. 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.
g. Specific details of the fees/charges levied by any other agency 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.
h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.
i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998
j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

3. Any other documents you seek to rely on in court.
4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.
5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

I will require this information within the next ten days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

I would appreciate your due diligence in this matter.

I await your rapid response.

Yours Faithfully,

[pt2537]

Thanks Ben

[pt2537]

With regards to the defense, its fairly straightforward so don't panic,when does your defense need to be filed?

[nimjacole]

I cannot thank you enough, this is fantastic!!!!

Well turning to the Defence, I actually went onto the www.moneyclaim.gove.uk site and actually filed an acknowledgement of service on 22nd November 2007 which was received on 23rd November 2007. I'm not sure when the defence is due - is this 28 days from this date, if it is then its due on 21st December. Is it my understanding that I just file the Defence on the 20th December? or do I need to inform the COurt that I intend to do so, does that make sense!

Thanks.

[tomterm8]

Best to call the court and ask when the defence is due. it's on the top right hand corner of your claim form.

[NitrousOxide]

Their POC is:
"We bought this loan and you owe it, look we have a notice of assignment!!"
No agreement number or any dates, how they came to that figure and of course it could be statute barred.
You're in good hands with the others here

[nimjacole]

I have sent off the letter by recorded delivery yesterday and will let you know what their response is.

[nimjacole]

Hi all,

I've been in contact with the Court and they have said the following.

With reference to the above claim number, please be advised that the case has not been transferred. Your Acknowledgment of service giving you an extra 14 days to file your defence was filed on 23-NOV-2007, I advise you to submit your defence to the court as soon as possible to avoid judgment being entered against you in default.

Once your defence has been received a copy will be sent to the claimant they will then decide if they wish to continue with the case and proceed for a hearing.

I have not heard anything from the claimants.

Please advise of next steps to take, as I really dont want judgement entered against me!!

Thanks

[pt2537]

Hi there

you shout, we reply

here you go

In the xxxxxxxx County Court
Claim number

Between

xxxxxxxxxxx- Claimant

and

nimjacole- 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 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.I put the claimant to strict proof that I am liable for this debt and that it is not statute barred by virtue of section 5 of the Limitation Act 1980, I require the claimant to produce evidence that any such payments towards this debt have been made in the last six years

6.Further to the case, on xx/xx/2007 I requested 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.

7.To Date the claimant has ignored 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

8.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 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 interest 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

9.The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 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

10. 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.”

11.Notwithstanding points 8 and 9, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

12The claimant is therefore put to strict proof that such a compliant document exists

13.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.

14.Notwithstanding point 11, 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)

15.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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

16.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

17.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.


18.Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 6 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.


19.In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

Statement of Truth


I, believe the above statement to be true and factual


Signed …………………

Date