Claim form Received today

[darcus]

Hi

 

Please help.

I sent HBOS a CCA request on the 2nd of January to which they sent the Postal Order back saying that it didnt have the name on it, I wrote Halifax on it and sent it back with a new CCA request letter on 27th January.

To date, I have not received a response from Halifax. The CCA request was pertaining to an alleged credit card debt.

 

This evening after coming home from work, I received a Claim Form from Northampton County Court. The particulars of the claim read:

 

By agreement(s) entered into between the Claimant and Defendant, the Defendant has failed to pay the sum of £XXXXX. The Claimant has requested payment but the Defendant has failed to pay the full sum demanded. The Claimant claims the sum of £XXXXX and interest under s.69 of the County Courts Act 1984 at a rate of 8% per annum from 17/02/2009 until judgment or sooner payment. Costs. The claim does not include issues under the Human Rights Act 1998.

 

The claimant is Bank of Scotland plc, the claimaints solicitor is Irwin Mitchell.

 

Please advise as to what I do next. I am really scared. I am a homeowner. I had to downgrade my job at the end of 2006 and stupidly started living off my credit cards, my income fell from £32k per annum to £20k pa. I have been with the CCCS who recommended I only pay £1 per month because of my basic outgoings. My girlfriend no longer wants to be with me and I can't provide for my son. I don't know what to do.

I have a meeting with the Citizens Advice Bureau next week to whom I will be taking this paperwork to in Birmingham.

 

I wish I had the money to pay these guys, but I can't. They haven't responded to my CCA request. I haven't sent them a follow up letter. Can someone please advise me as to what I have to do next? Please, I can't afford a solicitor, I can barely afford to get to work. I work in the financial services industry and having a CCJ could force my employer to sack me. I am in commercial finance. If I become bankrupt, I will lose everything I have, I have a mortgage of £86k which is paid fine, and a secured loan of £28k which is paid, my house is now only worth £100k, maybe less, so negative equity. What can I do?

 

I hope someone can help here.

d

Edited March 13, 2009 by 42man
deleted due to poster being potentially identitfied

[Goldlady]

Hi, please don't worry too much as I am sure we can help in some way. How long have you had the card? If several years then they may not have a valid CCA. It seems odd that they returned your request for a rather vague reason and then miraculously issued a court claim.

 

Are you paying them £1 a month?

 

You must remember that you need to respond to the court claim within 14 days.

[darcus]

Hi

I'm sh*tting my load at the moment. Times are really tough and I can't afford to lose my job, first the missus, then the job, then the house, then life... i dont know what to do. dont have £16 let alone £16k.

I am paying them £1 a month at the moment on standing order.

My request for a CCA have been ignored and I have now received this claim form from the court. Can anyone advise on what i have to do...

Also, in responding to the court within 14 days - what do I do? How do I respond? I've gone through the threads but I don't understand. Nothing is clear right now.

[Goldlady]

There are many many people in the same situation as you. Not that that's much consolation, but please try not to worry too much.

 

If you are paying them, admittedly not a lot considering the size of the debt, but all you can afford at the moment the court will take a dim view of them issuing proceedings.

 

I would wait and see what the CAB suggest next week. They might try and sort it out direct with the bank. I am not sure what they will advise but what I would do is send back the court claim saying you intend to fully defend the claim and then send the claimant a letter under the civil procedure rules (will find it if you need it) asking them for full information about the account, copy of the original agreement, full statements etc etc. If they haven't complied with your CCA request so far there is a chance they do not have it, and they need it to proceed with the court claim.

 

Keep strong:)

[Docman]

hi darcus

 

Firstly, stop creating dirty laundry!

 

Second, as goldlady points out, there are many people out there in the same position. here we try to help each other as well. You should acknowledge service of the claim form. You can do this on line. Follow the instructions that came with the claim form. The password is on the claim form itself.

 

Third, get some further information from HBOS. Don't bother with a CCA request or a SAR under the Data Protection Act. They take too long and it's a bit late. Instead, use the courts rules (Civil Procedure Rules or CPR) to get documents. i suugest a letter using CPR 31 might be appropriate. An example is below -

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

 

Send this letter by recorded delivery ('Signed For' in Royal Mail speak). Sign your name electronically, use an unusual font and put it in italics.

 

Fourth, sit back and relax for the next two weeks. There is nothing else you can do for now. In a couple of weeks, you will need to draft a defence. Come back and people will help.

[42man]

Good advice here....if you want to defend the claim, then you must acknowledge service within 14 days of the date on the claim form, then you get a further 14+3 days in which to submit your defence....it is too early to do your defence as you need to see if they respond to your CPR above....

 

As for the CPR letter you need to send this recorded to the opposing solicitors but delete number 2, as the debt has not been assigned (i.e. sold to a debt collection agency)

 

As this is over £5k then you'll also need to delete this bit

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

Just keep a close eye on the timescales and have a read of this thread here - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[darcus]

Thank you for your help peoples.

I have printed that letter and will be sending it out Monday. Also, do I do the acknowledgment online or by post - which is better?

[Docman]

Acknowleding online is easier, quicker & cheaper and you can print off a confirmation.

[creditcardmug]

Make sure when you acknowledge that you tick you intend to defend ALL of the claim, dont enter a defence yet....come back to this thread, we need a few more details when you have done that.

 

Oh two more things, dont sign any letters,just type your name, and dont speak to them on the phone.

[darcus]

Hi

I have been in hospital for the last few days, and just come out today. I received the following from Halifax:

 

hope the above worked fine. I havent yet acknowledged the claim nor have I sent the letter, because I was rushed to hospital. please advise.

Edited February 25, 2009 by darcus
Forgot to edit one of the images...

[42man]

They look like their current terms, and the 'agreement' piece does not have any prescribed terms, unenforceable in my opinion (although a judge may favour you or not !!)

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

 

 

 

is this in response to the CCA request or the CPR 31.14 ? do you know ? If it's in response to the CPR then they have failed to provide the default notice.....

[darcus]

Sorry, this is in reply to the CCA request.

The first two pages above were on the same piece of paper. It shows that there are rates there.

Shall i acknowledge the claim online and do the CPR request?

 

Also, everything after page 2 was stapled together, it only had my name and address on the first page - there were no signatures or anything...

 

Thanks for the rapid response.

[42man]

If you want to defend then yes, keep a close eye on the timescales, send out the CPR by RECORDED delivery...acknowledge the claim within 14 days of the date on the claim form.....it is too early to submit a defence, but as I said above keep a close eye on the timescales....and please do read as much as you can on these forums....BUT be aware you might possibly be in for a fight, so it is a risk....and judges can vary wildly..

[creditcardmug]

I believe that agreement is not enforceable for what its worth, there is no link on the page you signed to the second page, and the first page contains no prescribed terms.

 

I suggest you acknowledge service, tick you intend to defend ALL of the claim, print off a receipt.

Send the CPR letter, don't sign it, just type your name

 

Everything 42man says above is valid.

[The_Grumlin]

Don't know it relevant but point 10.2 makes reference to Financial Services (Distance Marketing) Regulation 2004?

 

For an Agreement from 2001/02?

[42man]

Very good point.....worth mentioning this too !!!

[darcus]

Are those points going to be raised in a potential defence or do I have to write this onto the CPR?

[42man]

It depends if they respond to the CPR.....no this doesn't go on the CPR....Have you sent it out yet ? the letter in post 5 above ? If not you need to do this ASAP.....and send it recorded....

[darcus]

Hi.

I've sent the CPR request above recorded first class...

...and acknowledged the request online.

Fingers crossed now. I'm not sure about what to do next, but lets see and what they come back with, I will upload and hope someone can help.

You've all been a great help with this, when Im busy doing something it relieves the stress a little...

Thank you again.

Edited February 26, 2009 by darcus

[42man]

Please keep an eye on the deadlines.....and give a shout if you need some help (and do have a good read through these forums too !!)

[darcus]

cheers for your help 42 - i've been glued to this forum since I found it - I've been looking through the thread you've mentioned. I don't understand most of it which has been the problem, but I'm muddling through.

[The_Grumlin]

The Claimant claims the sum of 16333.21 and interest under s.69 of the County Courts Act 1984 at a rate of 8% per annum from 17/02/2009 until judgment or sooner payment

 

are they allow to claim this, I don't think so it a regulated consumer credit agreement.

[creditcardmug]

are they allow to claim this, I don't think so it a regulated consumer credit agreement.

 

No they are not allowed to claim it, but its a side issue really, if they don't have an enforceable agreement

[creditcardmug]

Darcus what date must you file your defence by, its 33 days from the date on the claim form?

[darcus]

Hi,

The date on the claim form is 18th February. Is that 33 working days or normal days? I sent the CPR this afternoon, they will have it tomorrow. Hopefully I will get the right information from them in time for someone to help me prepare a defence...

Will I need to go to court and talk through the defence or can it get dealt with by post?

Ta