Urgent help with defence please!

[Debt Warrior]

I would appreciate some help with my situation as i am finding it difficult to apply the excellent advice on this forum to my particular circs. I'm new to the forum so have not proceeded exactly in accordance with that advice prior to now and am so confused as to how to proceed. Here's a precis of situation.

Debt owed originally to bank. Debt comprised £344.41 overdraft; £7.39 overdraft; £444.50 flexi-loan; £13,846.64 personal loan; £1019.79 credit card. Default notices issued on personal loan, credit card and flexiloan.

DCA asked to collect £14,583.35 using as 'account number' the number of one of the bank accounts - they supplied copies of agreements but no statements. This was a stressful time so without checking what the amount represented or pressing for anything else I began a repayment schedule which continued until January this year when I discovered mail sent to a previous address including a letter of assignment from the bank and covering letter from a new DCA. These were dated 16th November. The first DCA had been given my new address but the bank had not. They quoted the debt as £14378.35 offered to continue the payment schedule but on 21st Jan I requested copy of CCA plus statements before setting up arrangement. Cheque for £1 cashed 28th Jan. Nothing heard so sent pleasant reminder on 13th Feb. Letter to current address dated 10th March received from DCA requesting £10 (previous monthly amount) within 10 days and threatening further recovery action if I didn't comply. Said may include issue of legal proceedings without further warning. I sent 3rd pleasant letter reiterating my request for docs and pointing out they were unable to enforce. Next thing was summons issued on 7th April. I sent off acknowledgment of service and was all set to defend on failure to produce docs etc when a copy of my credit card agreement arrived in the post. No covering letter and nothing to say how much was owed, no statements or anything. Please can anyone help me make sense of what defence I should use? And of the fact that some of this debt is not covered by section 78 as it is for overdrafts - or is it? cos I don't understand the amounts being asked for any way along the line. I have no objection to paying the money back but I do object to being taken to court, having court costs added to my debt plus a CCJ on my record when all I was doing was making a legal request! I have not sent off a CPR letter but will try to do that tomorrow morning. The date for filing defence is 4pm 12th May.

[Debt Warrior]

Sorry - had forgotten 2 more letters from DCA. One 9th Jan says sorry that you've received a demand for payment when we had already received it!!!! No idea what that's about. But the second one mentions summons issued and is asking for full payment of debt £14643.53 (not a recognisable amount even including court costs added on claim) or failing that will seek judgement. i find all this information and all these circs so confusing! I am an artistic type and this is so much 'not my thing' Please help.

[Debt Warrior]

I would appreciate some help with my situation as i am finding it difficult to apply the excellent advice on this forum to my particular circs. I'm new to the forum so have not proceeded exactly in accordance with that advice prior to now and am so confused as to how to proceed. Here's a precis of situation.

Debt owed originally to bank. Debt comprised £344.41 overdraft; £7.39 overdraft; £444.50 flexi-loan; £13,846.64 personal loan; £1019.79 credit card. Default notices issued on personal loan, credit card and flexiloan.

DCA asked to collect £14,583.35 using as 'account number' the number of one of the bank accounts - they supplied copies of agreements but no statements. This was a stressful time so without checking what the amount represented or pressing for anything else I began a repayment schedule which continued until January this year when I discovered mail sent to a previous address including a letter of assignment from the bank and covering letter from a new DCA. These were dated 16th November. The first DCA had been given my new address but the bank had not. They quoted the debt as £14378.35 offered to continue the payment schedule but on 21st Jan I requested copy of CCA plus statements before setting up arrangement. Cheque for £1 cashed 28th Jan. Nothing heard so sent pleasant reminder on 13th Feb. Letter to current address dated 10th March received from DCA requesting £10 (previous monthly amount) within 10 days and threatening further recovery action if I didn't comply. Said may include issue of legal proceedings without further warning. I sent 3rd pleasant letter reiterating my request for docs and pointing out they were unable to enforce. Next thing was summons issued on 7th April. I sent off acknowledgment of service and was all set to defend on failure to produce docs etc when a copy of my credit card agreement arrived in the post. No covering letter and nothing to say how much was owed, no statements or anything. Please can anyone help me make sense of what defence I should use? And of the fact that some of this debt is not covered by section 78 as it is for overdrafts - or is it? cos I don't understand the amounts being asked for any way along the line. I have no objection to paying the money back but I do object to being taken to court, having court costs added to my debt plus a CCJ on my record when all I was doing was making a legal request! I have not sent off a CPR letter but will try to do that tomorrow morning. The date for filing defence is 4pm 12th May.

[MilkTrayMan]

Hello Debt Warrior!

It may help peeps to be able to give U more specific advice if U are able to scan + Post on your Thread a copy of the 'alleged' Credit Agreement that was sent to U by the DCA (...The name of the DCA + BANK would be handy to know too btw).

THIS Thread will show U how to do it.

Many Credit Agreements that peeps are sent by DCA's are NO such thing, as they fail to contain the prescribed terms etc, as per the Consumer Credit Act 1974.

...This may fact be able to be used by U, if it becomes necessary...

...

[nicklea]

Can you also give details of what the claim form from that court actually says. This is very important in helping to do a defence

[Debt Warrior]

Hey guys! Am so glad some of you are early risers. :grin:

It says - The Claimant's claim is for the sum of 14327.35 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and HSBC Bank plc under reference ***** and assigned to the Claimant on the 28th September, 2007 notice of which has been given to the Defendant.

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant pursuant to Section 87(1) of the Consumer Credit Act 1974

The Claimant claims the sum of 14327.35

This is signed Howerd Cohen & Co who are solicitors for CL Finance, the DCA

 

My accounts, loan and card was with First Direct which is in some way a part of HSBC

 

I will scan docs tonight - which ones in particular? Also have printed out CPR letter - who does it go to solicitor or DCA?

[cashins]

Hi

 

Under CCA 74 they should have sent: copy agreement, terms and conditions and a current statement of account for each loan.

 

Posting these + need to know what Court Papers said. (Watch out for the timescale in which you need to reply to the court.)

 

David

[nicklea]

Hi debtwarrior,

 

It sounds from your post that there are two or more accounts involved but the dca are claiming that there is only one - is that correct?

 

What you need to do now is send the CPR letter to the solicitors.

 

You also need to acknowledge service to the court - that will give you 28 days in which to put in your defence.

 

When it gets nearer to the 28 days, if they haven't replied to your CPR lettert then come back and there is a defence that can be done basically saying that you haven't received the documents you require to defend your case so the case should be adjourned until the claimant does provide you with the documents.

 

As and when they do supply the documents then we can have a look at what there is adn provide a defence for you

[robcag]

........Next thing was summons issued on 7th April.............The date for filing defence is 4pm 12th May.

 

Hi DW

 

I'm not 100% sure on this as we have had a bank holiday during that period and I'm not sure how that affects things, but disregarding that, I calculate that your defence needs to be in by 9th May as I believe the actual date falls on Saturday the 10th May, which I think means you have to have it in by 4:00pm on the preceding Friday.

 

I could be wrong on that but it might be advisable to double-check (and I mean double-check) with the court as I'm sure somebody else was in the same position as you a couple of months ago and the court initially advised them wrongly. Point out to them that you think your deadline falls at the weekend and ask what happens in that situation.

 

Good luck

Rob

[Debt Warrior]

The date of issue of the claim was 5th April so I have already acknowledged receipt and the final date I have been given to have defence in by is 12th. I was told that by the court with an explanation that it is because the actual date (10th) falls on a Saturday but I will ring again tomorrow and ask again to make doubly sure.

So bearing this in mind there isn't time to wait 14 days for solicitor's response, or lack of, in order to compose defence.

 

I have tried scanning one of the agreements but it is such a poor copy that although you can read it in the flesh once scanned it becomes unreadable. Not familiar with the technology entirely - when you look at these scans can you zoom in? If so you can manage to read it then. Or can you tell me what I'm looking for on them?

 

CPR letter was sent today special delivery to solicitor.

[Debt Warrior]

By the way - there were no terms and conditions enclosed. Only copies of agreement.

Just to clarify most of these have been supplied by the first DCA which is Metropolitan who were collecting on behalf of HSBC. So far from the current DCA - C L Finance I have only had copy of agreement for my credit card with nothing to show the balance owed. It was in fact £1017.79 which doesn't of course come close to the amount of £14378.35 that they are asking.

[robcag]

The date of issue of the claim was 5th April ......

 

I take it you mean the 7th as you said in your first post?

 

The 5th was a Saturday so hopefully you do mean the 7th.

 

You need to be on the ball with your dates as theoretically the Claimant could apply for summary judgement if you miss the deadline for your defence.

 

Not trying to panic you, just pointing out the possibilities.

 

Rob

[B3rty]

I think you have said that all the debt is rolled up into one account and this account is what the DCA are now chasing?

 

Does the account number relate to one you held or did they create a new account number for this money?

 

And is this the account number shown in the NoA you received to say the account had been sold to the DCA?

 

If the above is correct have you received a default notice from HSBC/FD for this account?

[Debt Warrior]

I had 2 current acs, 1 flexiloan, 1 personal loan and 1 credit card. Both accounts were overdrawn.

One of those current accounts is the account number used and that is used as ref on NoA from CLFinance. I have no default notice for that account number. Neither do I have a default notice for the overdraft on the other current account. Only have default notices on Loan, flexiloan and card.

[nicklea]

ok,

 

I'll put something together today and post it up this afternoon for you to have a look at

 

Forgot to say, it would really help if you could either scan or take a photo of the cc agreement, remove the personal details and then post it here using something like

 

Image hosting, free photo sharing & video sharing at Photobucket

Edited May 8, 2008 by nicklea

[Debt Warrior]

Bless you Nick.

[Debt Warrior]

Problem is it isn't very readable even in the flesh so once scanned it can barely be made out. Will give it a go.

[Debt Warrior]

In the defence can we make the point that I have been willing all along to pay the DCA but have been waiting for them to supply docs I'm legally entitled to have from them. I believe they (DCA) are supposed to do all they can to keep the matter out of court. I sent 2 reminders to them to send me docs offering to start payments as soon as they had done so.

[Debt Warrior]

Sorry is going to take too long just now to scan docs etc - I have to be in London today and have no more time now. Can do it tonight if it is of any use by then. Not sure when home. Otherwise points I've noticed are

1. No terms and conditions are included for Cheque Account and High Interest Savings Account - only application form which doesn't include them.

2. Some terms and conditions are included for credit card but not all - sheet ends with "Credit card terms and conditons continued overleaf". The ones on there don't refer to anything that seems relevant. Doesn't say they can transfer debt to another account for example. Is all about how I can use it.

3. Flexiloan has no terms and conditons. Signature says I am bound by terms and conditions but doesn't mention where they may be found.

4. Same with personal loan.

Will take docs with me to London and hubbie can monitor messages on forum for me so can answer any questions.

So grateful for your help.

[gh2008]

Ok, can you scan and post the agreement for the CC (remove any personal info leave any figures)

 

You will need to submit an embarassed defence which basically says 'I haven't had enough info from the claimant in order to defend'

 

 

You've left it a little late finding the CAG haven't you but not to worry, we will help you sort this out.

 

Unless someone else posts it, i will post a defence you can customise to your own personal circumstances either tonight or tomorrow morning once I've searched the right one out.

 

Have you received any default notices?

 

Could you try and post a timeline, in paragraphs as it would make it easier to read

 

Could you scan or type up the POC off the claim form

 

Good luck

gh

[Debt Warrior]

Right some panic is off - have just phoned court and confirmed for second time that due date is Monday 4pm. So can scan docs tonight or tomorrow morning.

Things I think are relevant are

1. Have no default notice for that bank account they are using as reference.

2. Have not got full terms and conditions for anything

3. Did not give permission nor receive paperwork to combine debt

4. Have not got statements for anything despite asking 3 times.

5. Fly in ointment is 2 overdrafts are involved though they are not in any way the bulk of the amount.

Cheers. Have a good day. Will still be on stand by in case of questions.

[42man]

In the Northampton County Court

Claim number 7XXXXXXXX

 

 

 

 

Between

 

 

XXXXX - Claimant

 

 

 

and

 

 

XXXXXX - Defendant

 

 

Defence

 

 

 

 

• 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.
  

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

• 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.
  

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 any 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) Any copies of written agreements 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.

 

• Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet
  
• 
  
• The claimant has failed to supply any documents which they intend to rely upon in this case
  

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

 

 

• The courts attention is drawn to the fact that where if an agreement does not have the prescribed terms as stated in point 8 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
  

• Notwithstanding points 8 and 9, any such agreements must be signed in the prescribed manner by both debtor and creditor. 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
   
  
  
• The claimant is therefore put to strict proof that such compliant documents exist
   
  
  
• The request for the alleged credit agreement was made under section 78(1) running account credit, of the Consumer Credit Act 1974. The prescribed time limit for furnishing a copy of the alleged credit agreement is twelve working days from receipt of the request, as stipulated in Regulation two of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.
  
• The claimants were legally obliged to furnish a copy of the alleged credit agreement by the XXXXX (date)
  
• Furthermore, under section 78(6)(b) of the Consumer Credit Act 1974, should the claimant fail to provide the documentation in response to my s78 (1) request by the XXXXX (date) the Claimants may commit a criminal offence as the default will have continued for a period of one month as described in s78 (6) (b). Since the claimant has issued proceedings without producing the requested documentation to support their case I would contend that the Claimant’s are acting vexatious and their conduct may amount to unlawful harassment contrary to s40 Administration of Justice Act 1970
  
• I have not received any defaults for the alleged debts from the creditor. I therefore put the claimant to strict proof that privity of contract exists between the claimant and Defendant.
  
• It is 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
  
• 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)
  

• 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
  
• 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
  

• Having instigated these proceedings without any legal basis the claimant has failed to provide sufficient information required 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 Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant
  

I request that under the Civil Procedure Rules that the claimant provide the following:

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. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. 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 *********.(AMEND TO THE COMPANY NAME)

c. 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.

d.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).

e. 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.

f. 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.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. 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.

i. Copies of statements for the entire duration of the credit agreement.

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

[42man]

You will need to have a good read of the above.....if you have sent the CPR off then you can get an adjournment, basically as you have no paperwork to make a defence !!! also incorporate that you believe there may be a substantial amount of excessive charges that have been added to the account and that it is not uncommon that debts are made up entirely of excessive charges.

[42man]

What you are doing here is requesting all the information in the CPR, to make a defence - tell the judge that you have sent of the Civil Procedure Rule request for information so that you can make a defence, as it stands you would dispute the claim, but need the relevant paperwork. Ask if the judge will order the claimant to provide the details requested...

[gh2008]

There is one of Paul's floating around that asks quite forcibly that as the documentation hasn't been produced that the claimant's case be struck out.

 

With that defence there is no need ofr a stay or anything as the ball is placed very clearly back in the court of the claimant and either they proceed and lose or they have to ask for a stay. Although severla have discontinued on receipt. I'll dig it out