CCJ from Barclaycard - advice please...

[MoonHawk]

Let's get going then.

 

I read Moonhawk's thread over the w/end. Do I understand it correctly that BEFORE I send in my defence, I should send a similar letter as noted in post #2 (relevant to my circumstances) to the solicitor for BC.

 

Should I clearly state that this is under CPR? What period of time should I give for them to comply (bearing in mind my timscales)?

 

Hi Wobbles.

 

That will put you in a stronger position with the court. Two things. Firstly fax it (for time reasons) and then send a copy by post. Secondly, put the heading in post #26 at the top so they are clear of your intent and can not say they were confused to the court.

 

10 days is fine as you are allowed to only give them seven days.

 

31.15 Inspection and copying of documents

Where a party has a right to inspect a document –

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

(Rule 31.3 and 31.14 deal with the right of a party to inspect a document)

 

Best Wishes

MoonHawk

[MoonHawk]

You can also word it that you did the S.A.R - (Subject Access Request) as a pre-trial protocol to avoid the need for litigation (nicely making it relevant to this case) and that they have not complied AND initiated litigation without helping you to work out your full rights in relation to their claim. I am sure a legal bod can nicely word that for ther counter.

 

Best Wishes

MoonHawk

[wobbles1914]

Moonhawk

 

Thanks for your tips.

[wobbles1914]

CPR sent today - by fax and recorded.

[car2403]

Have you kept a transmission report with date/time stamp? If not, send it again tomorrow and select one from the report menu on your fax - receipt is nothing without proof of receipt!

[MoonHawk]

I always call them straight after and tell them to check on the fax machine to see if it has come and get them to confirm that it is received clearly.

 

Best Wishes

MoonHawk

[wobbles1914]

Have you kept a transmission report with date/time stamp? If not, send it again tomorrow and select one from the report menu on your fax - receipt is nothing without proof of receipt!

 

Yep - I have the transmission report.

BTW car2403 - Can you let me know if you find anything more about how /when to counterclaim. I noted from your thread that there is still some uncertainty about that.

 

Cheers

 

Wobbles

[car2403]

Yeah, I'm calling the MCOL Helpdesk this morning so I'll let you know...

[wobbles1914]

I have just found out from the solicitors that although the claim shows BC as the claimant, the solicitors client is none other than a DCA! They confirmed that the CPR was not sent to the OC but to the DCA (their client)

 

The very same DCA that received a CCA letter from me back in the spring. They couldn't produce anything so sent me a letter saying that the account was being handed back to the OC.

 

Now I find out that the OC has passed it on to them again. I have been receiving lots of phone calls from them (DCA) over the last couple of months which I have ignored because they have not provided a CCA and the account is in dispute.

 

I cannot see the DCA turning around my CPR requirements within the allotted time - but we shall see.

 

Does anyone think I should do anything else in the meantime?

 

Wobbles

[MoonHawk]

I will PM you regarding something on my Next case which applies here.

 

Best Wishes

MoonHawk

[wobbles1914]

Yeah, I'm calling the MCOL Helpdesk this morning so I'll let you know...

 

I have found out that the counterclaim forms part of the defence. If the defendant is free to decide to counterclaim if it forms part of his defence. However, if the defendant wishes to counterclaim AFTER he has already filed his defence then he must apply to the court for permission.

 

This is covered by Rule 20.4 (2).

 

20.4 (1)A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

(2)A defendant may make a counterclaim against a claimant –

(a)without the court's permission if he files it with his defence; or

(b)at any other time with the court's permission.

 

(Part 15 makes provision for a defence to a claim and applies to a defence to a counterclaim by virtue of rule 20.3).

(3)Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.

 

 

Wobbles

[wobbles1914]

Also a normal court fee is required based upon amount of (counter)claim.

[wobbles1914]

Hi all,

 

I have been quite for a while as I have been waiting to see if BC would keep their promise to send the microfiche info that was o/standing. Well it arrived and I have been through it and between 2001 and 2004 there are only a handful of charges. Of course, I will add it to the s/sheet but it leaves the charges at about 50-60% of the alleged debt at the time of the alleged default.

 

I have to post my defence by 4pm on Monday so I need to look at this in detail and have it complete by Sunday night latest.

 

The key points of the defence are these:

 

1. CCA request made on DCA & OC back in March has not been compiled with. DCA responded by saying that they did not have it and would send account back to OC. OC has not even acknowledged the letter.

 

2. The charges make up 50% of the claim so I would like to count-claim for this amount.

 

3. Following tomterm8 reasoning this then means that the default notice was incorrect as the amount is in question.

 

4. Default removal?

 

5. Stat or CI interest? If CI, is there a s/sheet that I can use for credit cards. The one I have found on this site seems to be corrupted.

 

6. I acknowledged via MCOL - Is it possible to compile a largish defence and counterclaim on MCOL or do I need to file via hardcopy directly to court?

 

Are there some templete defences that I can be pointed to so that I can compiled one AND COUNTERCLAIM over the weekend?

 

 

 

If someone is able to help, don't feel that you need to answer all of the questions. Just responded on those that you have the most confidence on.

 

I have some additional updates on this case, but I would like to deal with just a few points at a time so I don't get too confused!

 

Tomterm8 - Could you provide so assistance?

 

Much appreciated.

[car2403]

You can file a Defence and Counter-claim on MCOL - it allows quite a lot of characters/lines, so you should be able to fit all this in. (If you "start" your Defence entry, it will show you the limits - you don't need to save, but if you do you can always go back and amend what you've already put in)

 

If filing via MCOL you have until 4pm on the 33rd day after issue - 5 days for service and 28 days to submit a Defence.

 

Take your time with your Defence, you need to get it right. I won't presume I can help, but tomterm8 was a great help in compiling mine and should be along soon... Don't panic!

[tomterm8]

You can file a Defence and Counter-claim on MCOL - it allows quite a lot of characters/lines, so you should be able to fit all this in. (If you "start" your Defence entry, it will show you the limits - you don't need to save, but if you do you can always go back and amend what you've already put in)

 

If filing via MCOL you have until 4pm on the 33rd day after issue - 5 days for service and 28 days to submit a Defence.

 

It's very important to acknowledge service within the alloted time, and then file your defence.

 

Take your time with your Defence, you need to get it right. I won't presume I can help, but tomterm8 was a great help in compiling mine and should be along soon... Don't panic!

 

I'm trying to get away from actually writing peoples defences for them, because I'm finding that this can be counter productive. When they go into the court room, they don't always seem to know or understand what they've filed!

 

I am willing to explain legal points, however, and to give "pointers" in the right direction...

[car2403]

I'm trying to get away from actually writing peoples defences for them, because I'm finding that this can be counter productive. When they go into the court room, they don't always seem to know or understand what they've filed!

 

I am willing to explain legal points, however, and to give "pointers" in the right direction...

 

I think that's absolutely fair, given the amount of people who need this "help" from you, tomterm8! (Which includes me, in lots of other threads, BTW!)

 

I think Wobbles has this one sorted, given what is outlined in post #88, he just needs to construct something and get some advice I'd say.

[tomterm8]

Hi all,

 

 

it’s always a good idea to start “I deny the allegations made by the claimant, and put the claimant to strict proof of each point” or something similar.

 

 

 

The key points of the defence are these:

 

1. CCA request made on DCA & OC back in March has not been compiled with. DCA responded by saying that they did not have it and would send account back to OC. OC has not even acknowledged the letter.

 

I’ve used a number of formats for this point. The one that seems to be most successful is:

 

on the DATE, a request was made under section 78-79 of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by guaranteed delivery to the Claimant’s Solicitors, with the statutory £1.00 fee enclosed. It was received on the DATE, which gave the Claimant twelve working days from receipt of the request, to provide said document, which is stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The claimant has not provided this document. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the Claimants are in default of said request under section 78-79 of the Consumer Credit Act 1974 and I respectfully submit these sections prevent the court enforcing this debt until the default is rectified.

 

 

2. The charges make up 50% of the claim so I would like to count-claim for this amount.

 

I’ve found that the best approach so far has been to write something along the lines of:

 

the amount requested in the Default Notice was in excess of what was actually required to remedy the alleged breach of contract. The amount claimed contains penalty charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. The Default Notice had to be accurate to be enforceable; the inclusion of penalty charges renders it legally invalid.

 

Without a valid default notice, the claimant is not entitled to enforce this agreement under s87(1) of the consumer credit act 1974.

 

In your defence, and file a counter claim based upon the POC readily available on the site

 

3. Following tomterm8 reasoning this then means that the default notice was incorrect as the amount is in question.

 

Personally, although I believe this is a valid argument, I would leave it alone as I believe it will over-complicate the defence, and not work in your favour

 

4. Default removal?

 

At this stage, personally I would also leave this alone… or state that since the default notice was inaccurate, the default record should be removed in your counterclaim.

 

 

5. Stat or CI interest? If CI, is there a s/sheet that I can use for credit cards. The one I have found on this site seems to be corrupted.

 

In terms of the counterclaim, only charge CI if they actually claimed the money… otherwise, it is stat.

 

6. I acknowledged via MCOL - Is it possible to compile a largish defence and counterclaim on MCOL or do I need to file via hardcopy directly to court?

 

I believe so

 

Are there some templete defences that I can be pointed to so that I can compiled one AND COUNTERCLAIM over the weekend?

 

I’ll hunt around for threads with example defences. There aren’t actually any “template” defences, since each case is different.

 

If someone is able to help, don't feel that you need to answer all of the questions. Just responded on those that you have the most confidence on.

 

I have some additional updates on this case, but I would like to deal with just a few points at a time so I don't get too confused!

 

Tomterm8 - Could you provide so assistance?

 

Much appreciated.

..

[tomterm8]

 

I think Wobbles has this one sorted, given what is outlined in post #88, he just needs to construct something and get some advice I'd say.

 

Looks like I was writing up in word while you were posting:)

[wobbles1914]

 

5. Stat or CI interest? If CI, is there a s/sheet that I can use for credit cards. The one I have found on this site seems to be corrupted.

 

In terms of the counterclaim, only charge CI if they actually claimed the money… otherwise, it is stat.

..

 

Firstly Tom, thanks a lot for your input and advice. Can you clear the above point up for me so that I understand what you mean.

 

The OC has charged me for example £25.00 and henceforth added this to the sum that is charged the contractual APR for the CC. Therefore can I claim for £25.00 x days x BIG% APR that I have paid sice the charge date?

 

Also does anyone know of a stable s/sheet that calculates CI?

 

Cheers

 

Wobbles

[wobbles1914]

UPDATE ON DEFENCE DEADLINE

 

I rang claimants solicitor recently to say that I was disappointed that their client (DCA) had not responded to the CPR 4.6 requests that I had made, leaving me in a position where I cannot clearly formulate my defence with all the facts.

The sol called me back and said that the client needed more time to obtain paperwork requested and would extend my defence deadline accordingly.

 

I smelled a rat at this point, because I wasn't gullible enough to accept this verbally and then find that the day after the original deadline, the DCA had gone ahead and filed a judgement. So I said that I wanted this extension confirmed in writing so that I could send a copy to the court.

 

I have received this in post.

 

UPSIDE

 

I have more time to prepare defence with more facts i.e. is there a valid agreement?

 

DOWNSIDE

 

They have more time to look for agreement. (This is the same OC & DCA that defaulted on CCA request six months ago).

 

Wobbles

[car2403]

Is there anything in CPR that says the Claimant can extend the Defence deadline? Not that I've come across yet.

 

I'd be worried about this as it looks like a ruse to dupe you in to giving them Judgment by Default!

 

What exactly are you waiting on under your CPR request for more info to construct your Defence anyway? Surely you Defend on the basis of the Claim now, with a caveat inserted to say you reserve the right to alter your Defence if new information is presented at a later date.

[tomterm8]

Is there anything in CPR that says the Claimant can extend the Defence deadline? Not that I've come across yet.

 

I'd be worried about this as it looks like a ruse to dupe you in to giving them Judgment by Default!

 

What exactly are you waiting on under your CPR request for more info to construct your Defence anyway? Surely you Defend on the basis of the Claim now, with a caveat inserted to say you reserve the right to alter your Defence if new information is presented at a later date.

 

I agree. People have been fooled by DCA's like this in the past. they then go for a default judgement.

[wobbles1914]

Is there anything in CPR that says the Claimant can extend the Defence deadline? Not that I've come across yet.

 

I'd be worried about this as it looks like a ruse to dupe you in to giving them Judgment by Default!

 

What exactly are you waiting on under your CPR request for more info to construct your Defence anyway? Surely you Defend on the basis of the Claim now, with a caveat inserted to say you reserve the right to alter your Defence if new information is presented at a later date.

 

Car, the main thing that I wanted was a clear statement that they either had an agreement or not as this is key to my defence.

[wobbles1914]

I agree. People have been fooled by DCA's like this in the past. they then go for a default judgement.

 

Yeah, I can imagine them trying this little trick...

 

The plan was to fax the letter to the court and get confirmation that the dates are changed BEFORE I decide not to file a defence.

 

However, you are both right in that I am struggling to see what the advantage is to me in delaying things...unless the text of my defence is incomplete and a shambles by Monday morning!

 

Wobbles

[wobbles1914]

Some many questions so little time...

 

The original claim by OC is via MCOL.

 

1. If I post my defence and counterclaim on MCOL how will I be able to include the schedule of charges?

 

2. Can I use hardcopy defence & counterclaim (POC) and apply it against an MCOL claim?

 

Wobbles