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mike331

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  1. Thanks Andy, I appreciate the speedy reply, I'll make the advised revisions and submit. I'll post up any updates. Regards, Mike
  2. Thanks Andy, I've drafted a defence referencing and adapting some recent embarrassed defences you have posted (inputted on) on CAG. The POC in the claim form I received wasn't paragraphed as such more like one paragraph, would you advise that I include the POC in my defence as below to refer to in my line items, or just remove reference to paragraphs in my defence? Or is this not an issue? I added a paragraph in my defence to the request I made to the claimant under s.78 of the Consumer Credit Act 1974. The claimant received this 14 (working) days ago and has not responded. Do you think I should mention about the claimant not being able to enforce the debt as it is in dispute or are these sorts of things implied anyway? Your feedback would be greatly appreciated. thanks again Andy. Mike Particulars of Claim reads as follow: 1)The claimant's claim is in respect of a credit agreement regulated by the Consumer Credit Act 1974 whereby Bank of America Original Creditor provided the defendant with a credit card. In return the defendant agreed to pay at least the minimum payment given in the statement. 2) A default notice was served on the defendant which has expired and upon which the defendant has failed to comply with. 3) A Notice of assignment has been sent to the defendant notifying them that this debt has been assigned to the claimant. The claimant therefore claims the sum of 6,xxx.xx plus costs. The claimant has complied with Sections III and IV of the Practise Direction on Pre-Action Conduct. ***Defence*** 1. Paragraph 1 is neither admitted nor denied with regards to the Defendant entering in to an agreement referred to in the Particulars of Claim ('the Agreement') with Bank of America. The Claimant is put to strict proof to: (a) show how the Defendant has entered into an agreement with the Claimant; and (b) show how the Defendant has reached the amount claimed for; and © show how the Claimant has the legal right, either under statute or equity to issue a claim; 2. Paragraph 2 is denied with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach. 3. It is denied with regards to the Defendant owing any monies to or that the claimant/original creditor served a valid Notice of Assignment the Claimant and the Claimant is put to strict proof to: (a) show how the Defendant has entered into an agreement with the Claimant; and (b) show how the Defendant has reached the amount claimed for; and © show how the Claimant has the legal right, either under statute or equity to issue a claim; 4. As per Civil Procedure icon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. 5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974. 6. On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx for a copy of the credit agreement, default notice, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim. This was delivered by recorded delivery to the claimant on xxxxxxx. The claimant has yet to comply. 7. On receipt of the claim form the Defendant sent a request dated xxxxxx pursuant to s.78 of the Consumer Credit Act 1974 to provide a copy of the credit agreement.This was delivered by recorded delivery to the claimant on xxxxxxx. The claimant has yet to comply. 8. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6. 9. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
  3. Hi there, I just wanted to post up an update. I sent the CCA request to the claimant (Capquest), and CPR request to the SOLs (recorded) which we're both delivered on 11th Nov, I haven't received a reply to either request as yet. Defence is due in mid next week and wanted to start thinking about drafting this up in the next couple of days. Any advice on best approach? Shall I use some kind of adapted embarrassed defence stating no response to CCA and CPR request so I'm unable to respond to the claim? It would be good to know what my position is, as it stands? Any advice, greatly appreciated. Mike
  4. Useful to know, thanks Andy. I'll post up any updates. Mike
  5. Thanks for the quick response Andy. I'll get these letters drafted and sent off ASAP and see what they come back with. Just one thing, on the CPR request should I ask for a copy of the 'signed' credit agreement? Mike
  6. Hi everyone, I received a claim form from northampton CC yesterday (dated 1st Nov) and would be really grateful to get some advise on how to proceed. I had some financial issues a few years ago and debt spiralled out of control, loads of late charges and interest applied via various creditors when I was struggling to keep my head above water and I just buried my head in the sand. I've managed to sort out most of the debt over last few years but haven't had any dealings with capquest to date, I am trying to move things forward and really need to avoid getting a ccj from this after so many years. The claimant is Capquest for amount over 6k for an old cc (Bank of America assuming MBNA). SOLS are Optima legal. I've check the CRA and there is a default registered by Capquest (default date 4/09). I have no paper work at all for this so can't at this stage confirm last time any details/when last payment was made and amount in charges, although I do know that there were loads of charges/admin fees/interest etc applied to the account with took me over my credit limit and further and further into debt, I don't think I made a payment for some time maybe 5 years + and I haven't been in correspondence with them at all. The amount they are claiming doesn't seem right. I received a letter from Optima legal in mid Oct attached which was threatening legal action, it was worrying but didn't read like a last letter before action. Then received the court papers yesterday nothing else in between (I've attached both letters minus personal details for ref). I'm planning to do the AOS online and send a CPR 31.14 request to the SOLS giving them 7 days to respond to see what they come back with. In the CPR request I was going to ask for true copies of the following - Letter of credit agreement - NOA - Default notice - Full statement of account - itemising all interest & charges from the commencement of the alleged debt Any advise on the above would be gratefully received? Or anyone who has had experience with this lot would be good to hear. Supporting docs attached. Many thanks
  7. Hi Andy, Below is a revised defence, I left in the line about non compliance to the CPR 31.14 request so it is highlighted to the court. I have tried not to particularise in too much detail at this stage as suggested. Any feedback would be greatly appreciated. I'm going to submit online tomorrow. Many thanks, Mike DEFENCE 1. The Defendant denies that the Claimant is entitled to any of the relief claimed or at all. 2. For want of any or any adequate particularity appertaining to the allegations concerning the account, the Defendant is embarrassed and unable to further plead to the Particulars of Claim. 3. On receipt of the claim form The Defendant sent a CPR 31.14 request for a copy of the agreement and statement of account which form the basis of this claim. 4. It has been confirmed via the Royal Mail website that the above letter was received and signed for. 5. To date no response has been received from the Claimant. 6. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I am at a disadvantage to respond to this claim and to allow me to properly respond to the claim. Consequently, I deny all allegations on the particulars of claim and put The Claimant to strict proof thereof. 7. The Defendant respectfully asks the permission of The Court to amend this defence if or when The Claimant provides full disclosure of the requested documents and allows inspection of the original documents. Statement of Truth I believe that the facts stated in this defence are true. Signed (typed) XXXXX.
  8. Hi Andy, Defence due this Wednesday 1st Aug. I'm planning to submit online tomorrow at the latest. I'll have a look at what to exclude from initial draft defence, would be great to get your thoughts on the above and what to remove/add? I've just logged in to the MCOL and seems to make sense, I guess I just type name after statement of truth? Thanks, Mike
  9. Thanks for the above advise, much appreciated. Andy - I agree with your points and I don't want to submit an application if disclosure is inevitable before the trial (should the case progress), I will happily play the long game. I've found a defence on CAG and adapted it below, I think I may have got a little carried away, do you think as much detail is necessary? I can strip it right back.. What do you think of point 14? Would be great to get your thoughts? Many thanks, Mike DEFENCE 1. I, XXX of XXXXXXXXXXXX am The Defendant in this action and make the following statement as my defence to the claim made by Robinson Way Ltd. 2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in The Claimant’s Particulars of Claim and put the Claimant to strict proof thereof. 3. The Claimant’s Particulars of Claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the civil procedure rules. (Even allowing for the constraints of the bulk issue system) 4. No documents supporting the claim in the particulars have been offered which the Defendant needs to establish what agreement it is that this action is based upon and so the Claimant's claim appears without merit. 5. On receipt of the claim form The Defendant sent a CPR 31.14 request for a copy of the agreement and statement of account which form the basis of this claim. 7. It has been confirmed via the Royal Mail website that the above letter was received and signed for. 8. To date no response has been received from the Claimant. 9. The Defendant telephoned the solicitor (Hegarty LLP - acting on behalf of the Claimant) on 26.07.2012 to request an extension of 28 days to submit a defence under CPR 15.5, the solicitors referred The Defendant back to IND (the phone number listed on the claim form for the solicitors) who subsequently informed The Defendant that this request needed to be discussed with the court directly. 10. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I am at a disadvantage to respond to this claim and to allow me to properly respond to the claim. Consequently, I deny all allegations on the particulars of claim and put The Claimant to strict proof thereof. 10. It is denied that I have an agreement with Robinson Way Ltd. 11. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement. 12. Without admission that any cause of action is shown by The Claimant it is denied that I am indebted to The Claimant as alleged or at all. 13. If The Claimant is The Assignee and there has been an Assignment, The Claimant fails to plead as such and it is contended that no such Notice of Assignment pursuant to the LoP Act 1925 has ever been received. Without a Notice of Assignment, The Assignment is merely equitable and The Claimant is put to strict proof to disclose this and proof that this claim can commence in their own name. 14. AND the Defendant Seeks an order that The Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed. i. Alternatively if the court decides not to strike out The Claimant’s case, it is requested that The Court orders full disclosure of the requested documents pursuant to the civil procedure Rules. ii. The Defendant respectfully asks the permission of The Court to amend this defence if or when The Claimant provides full disclosure of the requested documents and allows inspection of the original documents. Statement of Truth I believe that the facts stated in this defence are true. Signed XXXXX.
  10. Hi Andy, Quick update on this. I called the number the sols listed on the claim form and it was IND. They gave me the number for the sols so called them explained that I was after an 28 extension and they said no one available to speak to and referred me back to IND, who said I needed to speak with the court. I said that they need to agree the extension in writing etc. but they seemed to be pleading ignorance. I ended up speaking to the court who said that I can either submit the form to the court requesting more time requesting the docs (and fee back) or enter a partial defence, which I'm assuming is some sort of embarrassed defence. Can they simply evade their CPR duties. I call the sols tomorrow morning again and stress that I need this however going by today I'm not optimistic. Any thoughts on best way to play it. I'll pay the £45 if I have to if this is the best approach. If so it would be great if you could point me in the direction of a letter I could reference? Many thanks again, Mike
  11. Thanks Andy, Great advice, I'll call the sols and ask for the 28 day extension, hopefully they will be reasonable. Will post up the developments. Cheers, Mike
  12. Andy, if you're about it would be great to get your view on this? Here's what I'm looking to do based on my previous post. SAR response from HSBC. Try to find some document linking me with the current account and go to a branch with another form of ID. If I can't find anything then I'll print off a page from from my CRA report and use instead. I've moved a few times since this account was active btw. No response to CPR31.14 - 14 days has expired now, I have to submit my defence by 01.08.2012 (so will probably submit on line next Monday latest). Shall I try to call sols tomorrow and agree an extension to submit to the courts? What are the advantages of doing so? After I've submitted my defence is that it, I can't ask/force the claimant to provide me with the docs referenced in the POC. This is frustrating because I cannot respond to their plea properly without any information. From reading similar posts an option is to put an application to the courts to force them to disclose the documents, can I do this after submitting defence or can the courts grant an extension? Sorry but getting nervous about the want to take the right approach. Many thanks, Mike
  13. Hi all, I thought I'd give an update on the latest developments. I received a letter from HSBC late last week regarding the SAR request and the letter states that they cannot proceed with the request as the signature doesn't match what they have on records. A separate form was sent along with the letter stating that I need to take to a local branch so they can verify my identity before proceeding. This also asks for more details about the request, what it's for, which accounts and that they can't provide any information relating to PPI claims which I though was a bit strange, surely they are required to send all data they hold? Has anyone experienced this and dealt with it successfully? I can go in to the branch but I'm unsure whether I have anything that I can show regarding the current account (it's over 5 years old now). They have kept the postal order I sent with the initial request btw. Is the 40 day clock still ticking do you think? Regarding the CPR31.14 request to the sols, still nothing back. I sent it off 2 weeks ago to the day (9.07), records show they received it on the 11th July. The date on the claim form 29.06 + 5 days = 4.07 + 14 for AOS = 18.07 + 14 days to submit defence 1.08. I'd really appreciate advise on next steps with this as I have limited time to get my defence in so would like to start actioning this week to allow enough time to prepare and have ready. I understand I can submit my defence online, when do you think the safe cut off date is for this? Advice greatly appreciated. Thanks, Mike
  14. Appreciate you're help Andy, I'll get the letters sent off and will post up any developments. Thanks again, Mike
  15. Thanks Andy, Yes it's Robbers way registered as the creditor on my CRA for the default. I've adapted a CPR 31.14 letter to suit (I think) and copied below. If you could give it a quick once over before I send I'd really appreciate it. I've added a couple of comments in red where I wasn't sure. Cheers, Mike Dear Sir, CPR 31.14 for Letters of Facility On (date) I received the Claim Form in this case issued by you out of the (Name) county court. Case No. I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim. Do I actually need to do this before sending the letter? 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 document(s) mentioned in your Particulars of Claim: 1. The Notice of Assignment 2. A full statement of account - itemising all interest & charges from the commencement of the alleged debt to date. They mentioned the amount and interest in the PoC so thought this was relevant? If not I'll remove. 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 14 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 documents' 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 Sincerely,
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