Fredrickson/Bryan Carter

[In_lots_of_Trouble]

I am in a lot of debt due to divorce and ill health.

 

I have been dealing with the creditors with information from this great site.

 

However I have the following problem with Fredrickson/Bryan Carter and require help please.

 

The disputed debt is for 3201 and is with a Nationwide Credit Card.

 

I have sent Fredricksons a CCA via recorded delivery. This has been ignored and they have not cashed the cheque. I have proof of delivery.

 

They passed this to Bryan carter solicitors. i wrote to them saying the debt was in dispute. Sent this with proof of postage only. i have the slip.

 

They sent me several letters saying that there client Fredricksons had asked them to take me to court.

 

I think they got my letter as they now say they have issued proceedings on behalf of Nationwide.

 

Today I sent a CCA to Nationwide also. Sent this recorded.

 

What should I do now and how do I defend with a CCA.

 

Please help.

[yaffsimone1]

Firstly i would S.A.R - (Subject Access Request) Fredrickson and Nationwide to try and establish whether the debt has been sold or not and what charges are on the account, this also puts it in dispute again and if the Sols did try to sue you the judge will probably put a stay on it untill they have complied with your CCA and SAR request

[Struggling_Simon]

First of all, don't panic.

 

The fact that you can prove that they received a CCA request with the appropriate payment is defence enough. Fredericksons must still comply.

 

If they received the CCA request over 12 days ago, they are in default and so cannot action the debt as it is in dispute. I do think that instructing a solicitor counts as trying to enforce the debt, so a compalint to Trading Standards is in order.

 

You will be able insist that they provide it under Civil Procedure rules regarding disclosure before the hearing date, and you can get that enforced by an order from the judge.

 

Legally, any case where they cannot show a properly formatted agreement with it's terms and conditions would be struck out by the judge, in fact he would regard it as vexatious litigation - so one optimistic outlook on this would be that they cannot produce it - top result for YOU.

 

On the converse of that argument and if they choose to be obtuse, they may argue that they don't have to produce as they purchased the debt under Law of Property. A dubious argument.

 

The LoP states that things in action may only be assigned absolutely.

That means that the rights and duties from the previous assignment must be assumed as you may not put one party to detriment.

 

They would need to show LOTS MORE documents to argue that one.

 

just remember - No contract = no debt. No debt = No action.

 

If this has been of help please click my scales.

[In_lots_of_Trouble]

Will a SAR be an effective defence even after the proceedings have been issued. The letter states that they have been issued and thats what worries me.

[In_lots_of_Trouble]

Today I received the claim form from the court for Bryan Carter.

He is claiming 277 + costs and not the full amount.

What should I do now?

He is claiming on behalf of Nationwide and not Fredricksons?

[pt2537]

First of all, don't panic.

 

The fact that you can prove that they received a CCA request with the appropriate payment is defence enough. Fredericksons must still comply.

 

If they received the CCA request over 12 days ago, they are in default and so cannot action the debt as it is in dispute. I do think that instructing a solicitor counts as trying to enforce the debt, so a compalint to Trading Standards is in order. sorry a few points here need correcting . firstly, the 12 days is actually 12 working days as set out in the Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569) regulation 2 schedule 2. furthermore they do not commit an offence until the expiry of the 12 working days plus the 30 calendar days so its highly unlikely that Trading Standards will get involved until that point has passed

 

You will be able insist that they provide it under Civil Procedure rules regarding disclosure before the hearing date, and you can get that enforced by an order from the judge.

 

Legally, any case where they cannot show a properly formatted agreement with it's terms and conditions would be struck out by the judge,erm, i have seen cases where the judge has ruled against the defendant even where the credit agreement and T&Cs have not been produced together in fact he would regard it as vexatious litigation - so one optimistic outlook on this would be that they cannot produce it - top result for YOU Possibly, but not a dead cert.

 

On the converse of that argument and if they choose to be obtuse, they may argue that they don't have to produce as they purchased the debt under Law of Property. A dubious argument.

 

The LoP states that things in action may only be assigned absolutely.

That means that the rights and duties from the previous assignment must be assumed as you may not put one party to detriment.

 

They would need to show LOTS MORE documents to argue that one.

 

just remember - No contract = no debt. No debt = No action.NO CONTRACT MEANS NO ENFORCEABLE DEBT - the House of Lords in Wilson v FCT set that out clearly

 

If this has been of help please click my scales.

 

Sorry to correct you but this is extremely important that the information is accurate

 

 

Regards

paul

[pt2537]

Today I received the claim form from the court for Bryan Carter.

He is claiming 277 + costs and not the full amount.

What should I do now?

He is claiming on behalf of Nationwide and not Fredricksons?

can you post their particulars of claim please

 

minus any personal details

 

i will be back later to post up a suggested letter to send them

[pt2537]

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

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.

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.

 

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,

 

XXXX (type, don't sign).

 

 

 

ok send that via special delivery asap to them

 

it needs to be next day delivery

 

regards

paul

[In_lots_of_Trouble]

Paul, The letter will go today Special D.

Many thanks for your help with this I was getting so worried.

The Particulars of the claim are as follows.

 

"The Claimant claims 277.00 such sum being part of a debt due under an agreement number xxxxxxxxxxx ("The Agreement") whereby the defendant agreed to pay the claimant 33331.42 ("The Debt").

 

"For the avoidance of doubt in making this claim for a part of the debt the claimant does not waive any rights as to the balance of the debt, which the defendant continues to owe to the claimant under the agreement. The claimant reserves the right to make further claim for such sums of the debt as remain outstanding."

 

I have 2 more questions.

 

1) Should I acknowledge the court form.

 

2) They somehow have got my work phone number and are calling me at work. What are my rights here?

 

Thanks so much.

[In_lots_of_Trouble]

Do I sent the letter to Bryan Carter or nationwide?

[pt2537]

Paul, The letter will go today Special D.

Many thanks for your help with this I was getting so worried.

The Particulars of the claim are as follows.

 

"The Claimant claims 277.00 such sum being part of a debt due under an agreement number xxxxxxxxxxx ("The Agreement") whereby the defendant agreed to pay the claimant 33331.42 ("The Debt").

 

"For the avoidance of doubt in making this claim for a part of the debt the claimant does not waive any rights as to the balance of the debt, which the defendant continues to owe to the claimant under the agreement. The claimant reserves the right to make further claim for such sums of the debt as remain outstanding."

 

I have 2 more questions.

 

1) Should I acknowledge the court form.YES definitely acknowledge the claim

 

2) They somehow have got my work phone number and are calling me at work. What are my rights here? Now then i do believe that this breaches the OFT guidance on debt collection

i will have a reread as its a while since i looked at it

 

Thanks so much.

 

as for their particulars

 

i do believe that would amount to an abuse of the process in itself. they shouldnt be bringing a claim for a bit of the outstanding monies, AFAIK they should be bringing the claim for the full amount

 

so i will do some research on this point and come back to you

 

with regards to the letter.

 

send it to the solicitors

 

incidently who is the claimant on the claim form

[In_lots_of_Trouble]

The Claimanis Nationwide Building Society and not Fredricksons.

[In_lots_of_Trouble]

One other point is its Bryan Carter Solicitors who called me and not fredricksons. Fredricksons have never called me.

 

Although I believe they are one and the same.

[tomterm8]

as for their particulars

 

i do believe that would amount to an abuse of the process in itself. they shouldnt be bringing a claim for a bit of the outstanding monies, AFAIK they should be bringing the claim for the full amount

 

so i will do some research on this point and come back to you

 

with regards to the letter.

 

send it to the solicitors

 

incidently who is the claimant on the claim form

 

from a past defence:

 

2.1 The claimant expressly states that they have brought an action against me while reserving the right to take further legal action against me on the basis of the same facts for monies allegedly owing at the time their particulars of claim were filed and,

2.2 the claimant implies that they intend to take numerous and vexatious actions against me in the future, in contravention of the overriding objective, and on the basis of the same facts for further monies allegedly owing at the time their particulars of claim were filed subjecting me to substantial undue expense, inconvenience and depriving me of my right to a speedy trial.

2.3 By retaining the right to launch multiple actions in respect of the same cause of action, the claimant is attempting to breach s35 of the County Courts Act 1984, which states

“

It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.”

2.4 The claimant failed to abide by the pre-action protocols of the civil procedure rules, in so far as they failed to serve on me a properly formatted notice of legal action. The claimant failed to specify adequate details to investigate their claims, or to attach all documents upon which they found their claims.

[pt2537]

Thanks Tom, saves me having to refresh on the CPR:)

[tomterm8]

Frankly, all you have to do is file a basic defence... Bryan carter generally quickly discontinue.

 

I can't confirm this, but there are rumours bryan carter do this to secure their fee, without the knowledge of their "clients".

[sillysow]

Oddly enough the same has happened to me - but with Bryan Carter on behalf of MBNA. I paid the initial smaller amount that they ccj'd me for - so is that incorrect behaviour on their part? They have now issued court proceedings against me - to which I have acknowledged and expressed the desire to dispute. I have SAR'd MBNA and sent the above letter to Bryan Carter - cc'ing the courts.

[tomterm8]

Hi, sillysow welcome to the forum.

 

Can you start a new thread in http://www.consumeractiongroup.co.uk/forum/general-debt/? it's hard to advise two people at the same time.

[pt2537]

One other point is its Bryan Carter Solicitors who called me and not fredricksons. Fredricksons have never called me.

 

Although I believe they are one and the same.

 

j. acting in a way likely to be publicly embarrassing to the debtor either

deliberately or through lack of care, for example, by not putting

correspondence in a sealed envelope and putting it through a letterbox,

thereby running the risk that it could be read by third parties.

 

i would suggest that they are in breach at least of that part of the OFt guidance

 

and they could be argued as being also in breach of this

 

g. ignoring or disregarding debtors' legitimate wishes in respect

of when and where to contact them, for example, shift workers who

ask not to be telephoned during certain times of the day

[In_lots_of_Trouble]

Have had a reply from Mr Carter

 

"We thank you for your letter dated 5th February 2008 and note the contents"

 

"We do not accept that you are entitled to all of the documentation which you have requested at this stage or that you need it in order to prepare your defence to this claim"

 

"We have requested a breakdown of the account and a copy of the original agreement from our client and will forward these to you as soon as they are to hand and, in the meantime, we confirm that we agree an extension of time for service of your Defence of twenty-eight days from the date of this letter"

 

Firstly its a statutory right to have 28 days to file a defence. I have filed an acknowledgement with MCOL.

 

Secondly I am entitled to all the information under the Data protection act.

 

What should I do next?

[Joa]

I think this post has landed here by mistake....some gremlin or shall we blame barracad as per usual?

[pt2537]

yeah it has Joa

 

i will move it to the correct forum now

[sillysow]

I got the same reply - although it only stated a "general extension" for which I have now asked for their definition. They have not provided ANY information in the allotted time!

[In_lots_of_Trouble]

Bryan Carter have not replied.

 

I have looked through the forum and this is my proposed defence.

 

1. I do not acknowledghe this debt.

2. I object to the claimants’ particulars of claim, in so far as they breach my convention rights under the human rights act 1998 sixth protocol that I should have a fair and speedy trial, since

 

2.1 The claimant expressly states that they have brought an action against me while reserving the right to take further legal action against me on the basis of the same facts for monies allegedly owing at the time their particulars of claim were filed and,

 

2.2 the claimant implies that they intend to take numerous and vexatious actions against me in the future, in contravention of the overriding objective, and on the basis of the same facts for further monies allegedly owing at the time their particulars of claim were filed subjecting me to substantial undue expense, inconvenience and depriving me of my right to a speedy trial.

 

 

2.3 By retaining the right to launch multiple actions in respect of the same cause of action, the claimant is attempting to breach s35 of the County Courts Act 1984, which states

"

It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts."

2.4 The claimant failed to abide by the pre-action protocols of the civil procedure rules, in so far as they failed to serve on me a properly formatted notice of legal action. The claimant failed to specify adequate details to investigate their claims, or to attach all documents upon which they found their claims.

 

3. I further object to the claimants’ particulars of claims, in so far as they disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

3.1 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 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.

 

3.2 A copy of the purported written agreement 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 or prior to issue of the claim form as required by the Pre-Action Protocols.

 

3.3 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 servedattached to the claim form or prior to the issue of the claim form as required by the Pre-Action Protocols.

 

4. 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. If the claimant sent a default notice that includes unlawful penalty charges, or fees unlawfully debited in respect of the account, any default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt according to s89(1) of the consumer credit act 1974.

 

Failure to provide a copy of the executed agreement on request

 

5. On DATE, I sent by recorded delivery a request under the consumer credit act 1974 for a copy of the credit agreement, which the claimant replied to with a document which the Claimant has stated is the credit agreements in respect of the debt, a claim to which they are bound by virtue of s172 of the consumer credit act 1974. The claimant has failed to provide a copy of this within the 12 days prescribed by parliament. As a consequence, the agreement is rendered unenforceable via s77-79 until such time as the Claimant rectifies this default

 

 

Failure to serve a default notice

 

6. I put the claimant to strict proof that a default notice has been served which is accurate, and conforms to law.

 

7. I will refer in this section to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 1983 No 1561 as amended ("Default Regulations")

22. Reg (2) of the Default Regulations states the requirement of a default notice

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule.

8. Reg (5) and (6) of the Default Regulations lay out presentation requirements for a default notice.

 

9. With regard to the default notice, I would quote paragraph 3 of schedule 2:

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

10. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

11. Alternatively, I respectfully request a stay in proceedings until such time as the claimant provides the information outlined in paragraph's 3 and 4 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

I believe the statements in this defence to be true,

 

YOUR NAME

Also on the defence form can I just put see attached as there is not enogh space for this. Then just print off the above on a sheet of paper?

[pt2537]

Hi there

 

when does this need to be in by?

 

i think it needs a few subtle tweaks but its nothing that cant be done so no worries

 

if you can let me know what time frames we have to work to