County court claim help please

[fedupwithdebt2009]

Hi I am starting a new thread in here as its probably more appropriate than the other forum sections....although I started one regarding this issue.

 

Anyway, I recieved a claim form dated 30th January 2009 from Northhampton CC. It's for nearly £8K and its from Mortimer Clarke solicitors. They are claiming its for an overdraft but its not we never had an overdraft for the amount claimed (£4500 plus interest!!!!) and they say its a current account with HSBC but its not, the account they refer to was first direct. Also, I have kept everything to do with this account, ie statements etc (from 1997) and the closing balance on this account was 3p in credit so where they get an overdraft from I dunno!!!

 

I responded online, saying I was giong to dispute the whole debt and in defence I put that I dispute and deny alledged amount because of the aforementioned facts.

 

I heard back from court to say they had passed this defence onto claiment and he has 28 days to respond.

 

What do I do next? I am in the process of copying all statements and other evidence (letters, returned £1 fee from request for CCA) Will the court tell me when to present this defence? Or do I just wait for a further responce?? I have already sent him the letter requesting info that her has to provide with in 14 days (thats up monday)

 

What next?

 

Thanks for reading and any advice would be great!!

 

Fedup

[fedupwithdebt2009]

Anyone?

[atwozee]

They will have to prove you owe the money and if you have copies of statements that prove you don’t then they are going to run into problems.

Wait and see what response you get from the defence you submitted – if you don’t here anything within the next 4 weeks then phone the court for an update.

You could also write to the solicitors stating that you don’t recognise the account and request copies of statements to validate the claim under civil procedure rules.

[fedupwithdebt2009]

Hi I did do that, and sent it recorded delivery, the 14 days is up monday. Will I be able to show in court that I have evidence of said account?

 

Also, having read other threads, I was worried that the defence I submitted was not correct but then I understand at this first stage that it was enough.

 

thanks

[atwozee]

Hi I did do that, and sent it recorded delivery, the 14 days is up monday. Will I be able to show in court that I have evidence of said account?

Yes – if it goes to trial you will have to disclose any documents you intend to rely on and so will they.

Also, having read other threads, I was worried that the defence I submitted was not correct but then I understand at this first stage that it was enough.

As long as you disputed the amount and said prove (or words to that affect) it then that is what will have to happen.

thanks

 

Give the sols a call on Monday and ask them if they intend to send the info you requested - if not then ask them to confirm why not in writing.

 

You can't do a lot now until they decide to continue or not - they would be pretty silly to continue without being able to prove how the sum claimed was reached.

[fedupwithdebt2009]

A Bit more info....

 

We had a loan with first direct and we defauleted in 1998. it was passed to MCS and we have been paying them between £10/£15/£20 per month up untill 2007 when I asked them for a CCA. Sent letter recorded delivery and kept proof of posting. we got a letter back from C&G solicitors with a £1 cheque. The letter said please find enclosed a cheque for £1 being the amount over paid on said account. I therefore stopped payments and never got a CCA. It was then in oct 2007 sold to Marlin, and I informed them account in dispute etc, but no responce. then in Jan 2009 I got letter from litigation dept saying we have been trying to telephone you (lie cos they have no number for us!!) and basically if we dont respond they would get a CCJ and go for charging order on property. I again reitterated account in dispute.

Imagine my surprise when Clqaim form came and in POC it states we had an overdraft of said amount and we had drawn it all out and refused to pay it back!!! Also it states HSBC current account when Its not. I have proof like I said, of all this.

 

I cannot believe they (mortimer clarke) have lied like this, but methinks its cos they know that HSBC (first direct) dont have copy of CCA for loan, but it clearly shows on statements the loan and also says personal loan insurence etc.

 

How do I stand do you think???

[atwozee]

Well the first thing is they need to be claiming for the correct account/agreement – so if they’ve got all this wrong then they will need to amend their claim – they could discontinue and make a new correct claim stating the proper facts or they could apply to change the PoC with your permission.

There really isn’t a lot more you can do until they decide to continue or not. At some point they will have to produce the relevant info to justify the claim – they can’t just turn up and say so and so owes this without showing how the debt has been calculated.

If this claim is really to do with a loan rather than a current account then they will need to produce the agreement and a valid default notice – without those documents they will struggle with their case.

Maybe they have been silly and transferred the balance outstanding on your loan into your current account and are claiming on that basis. That would present a massive problem with their claim IMHO.

[fedupwithdebt2009]

Do I say its a loan in my proper defense or do I just let them prove said debt, and tie them in knots with the statements I have saying at close account in credit by 3p... I thought it might be best to just put them to the proof, seen as they have lied.....Also We have so far paid £1900 off said loan and it was, back in 1998, for just over £3K. (account was closed in July 1998 )

 

Thanks for your replies

 

fedup

[fedupwithdebt2009]

It seems very odd to me that for X amount of years its been a loan and when I ask for CCa they sell it on as an overdraft, after all, overdrafts are not covered by the CCA are they!!

[atwozee]

It seems very odd to me that for X amount of years its been a loan and when I ask for CCa they sell it on as an overdraft, after all, overdrafts are not covered by the CCA are they!!

They can't just convert a fixed sum credit agreement into an overdraft unless you agreed to it - that would be a complete breach of the Consumer Credit Act.

 

They will have to disclose what they intend to rely on as the case progresses - that's when you have to be on the ball with your defence - you can only counter the argument they put forward so let's see what they come up with.

[fedupwithdebt2009]

Ok thank you very much for taking time to reply to me I really appreciate it. No we never agreed to it, in fact we never knew anything about it, in fact when HSBC wrote to us to say they had sold debt onto marlin, it stated then "current account" and not loan, but its the same account number as our first direct account!!! I will come back as soon as I hear anything else. I'm sure that, even if the defence I submitted so far is not enough I can still appeal decision if it goes against me on grounds aforementioned.

 

Once again thanks

 

Fedup

[debbbbsy]

They can't just convert a fixed sum credit agreement into an overdraft unless you agreed to it - that would be a complete breach of the Consumer Credit Act.

 

It would also be a breach of your origonal contract. They would also have to prove that they haven't altered the interest rate, & Terms & Conditions.

 

Debs

[creditcardmug]

Hi just to update you here

 

The date on the claim is 30th jan

 

You acknowledged service, defending all of the claim?

 

You filed a defence?. we will need to see the defence.

 

Can you post up or type the Particulars of claim?

 

Remove anything which could identify you before posting

 

You have sent a CPR request to their solicitors?

 

Have you had

 

a Default notice?

 

a Notice of Assignment?

 

Sorry for all the questions, but we will need to know to help as things progress

[fedupwithdebt2009]

Hi yes I acknowledged service and disputed whole amount.

 

The POC said that we had a current account with HSBC IN 1997,(by written agreement it says...not true its first direct but never any written agreement) and that we had taken £4K overdraft,(not true) withdrawn the funds(not true) and then HSBC terminated account and we had ignored requests for payment by HSBC (again not true as HSBC have NEVER approached us about ANYTHING to do with this) ..that Marlin/Pheonix took over the debt in Oct 2007. Therefore they claim the £4K "overdraft" plus interest....total £7500

 

I asked in my other thread in "debt collection" section for advice on a defence but sadly got no answers ( only on matter of what to put in defence, and have decided to post in here) so I put what I thought which was the truth basically...."We deny and dispute this claim because we did not have a current account with HSBC (it was First Direct) and we did not at any time have an overdraft facility for the alledged amount owed"

So basically am putting them to the proof of this amount.

 

I have had a letter back from court saying thats been served on claiment and he has 28 days to respond, if he does not then it will be stayed and he will have to then apply for that stay to be lifted.

 

I understand I will have to hand my evidence into court if this continues and NO There is NO default notice, as it was defaulted on in 1998.....but I have letter from HSBC and Marlin telling me its been sold to them. Even the HSBC letter states "HSBC current account" but no mention of either loan or overdraft. Same with marlin letter it states HSBC current account....NOT overdraft.

Edited February 15, 2009 by fedupwithdebt2009

[fedupwithdebt2009]

Basically, on the statements I have it clearly shows no such amount owing an it also shows my husbands wages paid in ( I dont work) and it was around £900 per month back in 1997/98 so there is NO WAY that we would have even been given an overdraft of £4K its just madness !!!!!

[creditcardmug]

Hi, in the next stage Allocation Questionnaire, (if they decide to continue with this), you will need to require them to provide,

 

1 the agreement

 

2 notice/deed of assignment

 

3 a full breakdown of how the sum claimed has been calculated,together with entries for all charges/fees applied etc.

 

If they provide all this, then it should show the full story, then you can file a fully particularised defence to their claim.

 

If they dont then their case should be struck out

[atwozee]

Just read your other thread – probably best to stick to this thread now and post a link to it from your other thread.

Just to reassure you – if it turns out that the HSBC have transferred the balance of a regulated loan into an unregulated overdraft then their case will be easily defended. In doing what they have done they will have terminated the regulated account incorrectly therefore losing any right to recover any outstanding monies.

[fedupwithdebt2009]

Hi and thankyou both very much for taking time to repy. The account in question was closed by First Direct in July 1998 because our overdraft was £250 and we kept going over the limit and it was only opened in sept 1997. We also had a visa card each with first direct. The loan, which , as they are a telephone bank, was offered to us over the phone, was used to pay the cards and the SMALL overdraft off. Cards and account closed. All this is in the statements I have so I can prove I am telling the truth here. We made several payments to loan from 1st direct account, again these are detailed in statements, and when we changed to our new bank, CCCS advised us to offer what we could afford as per their budget sheet. Hence we have continued to pay this debt right up to the point that I realised I needed proof of this and sent request for a copy of cca, which was duly ignored, therefore I withheld payment, which I am within my rights to do after no CCa was produced.....all of this I can proove.

 

Once again thanks

[fedupwithdebt2009]

Hi I sent a copy of following letter to mortimor clarke on 2nd feb, by recorded delivery. Today I got a letter from MC saying they have asked their client for doccuments requested and will forward them on if it is before the court makes an order of disclosure.

 

Should be interesting to see what they come up with!!!!!

 

LETTER SENT:-

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY OR ANY COMPANY YOU CLAIM TO REPRESENT

 

In the Northampton County Court

xxxxxxxxxxxxxx -v-xxxxxxxxxxxxxxxxx

Claim Number: xxxxxxxxxxxxxxxx

 

 

Dear Sir/Madam

 

REQUEST FOR INFORMATION CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. 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.

 

The information must be furnished within fourteen days of the receipt of this letter. 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. 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.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

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 NatWest

c. .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).

d. 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.

e. 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.

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

g. 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.

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

 

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen 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.

 

Yours sincerely,

[fedupwithdebt2009]

Hi just an update here, it's obvious that Mortimer clarke are not going to provide me with anything to do with this alledged "overdraft" and I have not heard anything from the court yet, would it be advisable to ring court and ask them if its now stayed or will they write and let me know?

[creditcardmug]

Yes phone the court for an update on the status of the claim by all means

[fedupwithdebt2009]

Hi another update....have today recieved the Allocation Questionaire and would like help with filling it in please...have till 27th to return it....also its been transfered to my local county court so am pleased about that.

 

Thanks

[fedupwithdebt2009]

Bump

[fedupwithdebt2009]

Cant anyone help?

[fedupwithdebt2009]

Hi please help with this...

 

it's form N150

 

Basic back ground to this dispute is that we opened a bank account with first direct in 1997. In 1998 we took out a bank loan with them to pay off 2 visa cards and overdraft of £500. Account closed in 1998 (july) and balance at time was in credit by 3p.

 

Been paying nominal amounts off loan untill 2007 after defaulting in 1998. Asked for CCA for loan in 2007 and they ignored it and sent £1 cheque back saying it being amount overpaid on account. So account in dispute since 2007 because no cca for loan. No CCA = no payment. Have proof of payments made, have kept cheque and letter, and also have all bank statements relavent to said current account.

 

In January 2009 recieved county court claim for £7500, from pheonix/MCS and in POC it states that we had an over draft for £4000 and we refused to pay it back...also states current account was with HSBC, when it was First direct althought they have the right account number for my statements......that show the 3p credit when account closed. Have asked for info off solicitors MCS ( see above) but nothing, and today got Allocation Questionaire. Would be very gratefull of assistance to complete said form if you can 9 also with proper defence to be filed after AQ)

 

Thanks