Help! Received Claim Form. Any advice gratefully appreciated. Thank you

[lt4waf]

Hello hello,

 

Apologies first of all for making my first post a request of help and how cheeky that must seem.

 

Today i received a Claim Form from Northampton (CCBC) County Court.

 

Before i launch into the particulars I'd like to say i have spent the evening reading through various threads and digesting the advice of the very kind and knowledgeable people here. Thank you for the sticky's and to contributions from TomTerm8 and pt2537 which have been a tremendous help in assisting me to understand the situation i now find myself in, and what to do next.

 

With no warning i have received the claim form stating the claimant is FV-1 Inc. Their address is in America.

 

The address for sending documents is another company called IND. Their address is a PO Box.

 

The Particulars of the claim are as follows..........

 

----------

 

The claimant claims for sums under a/ various Credit Agreement(s) entered into between HSBC plc and the Defendant. The rights of HSBC plc passed to the Claimant pursuant to an assignment dated 22/12/06 between HSBC plc and the Claimant. The agreement(s) was/were terminated upon the Defendant failure to comply with the terms of the Agreement(s) and or the statutory Notice of Default served by HSBC plc.

And the Claimant claims:

Credit Card Account: xxxxxxxxxxxxxxxx

balance of £3,516.47 as of 8/7/04.

Interest under s69 of the County Court Act 1984 at the rate of 8% a year from the Default Date(s) to 26/2/08 of £1,023.53 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 0.77 AND Costs.

 

-----------

 

The 'was/were', 'and/or' and '(s)' all confuse me, like they're not sure exactly what they are claiming but will try and cover everything.

There is/are (lol I'm doing it now) no credit agreement(s) attached to the claim.

They've added interest on from the Default date, yet fail to mention when exactly the default date is.

I may have received a default letter from HSBC many many years ago, but i cannot be 100% certain. I certainly haven't got a copy of one.

I've had no letter telling me I've got 28 days to comply before court proceedings are started.

 

If anyone can offer some confirmation on what i should do next I'd be most grateful.

 

 

After reading various threads my plan of action is to

 

1. Send the letter requesting a true copy of the Credit Agreement

they refer to via special delivery.

 

2. Send the request for information letter via special delivery.

 

Could i combine these into 1 letter?? Or is it best to send them separately?

 

3. Complete acknowledgement of service to the court.

 

4. Wait for response from IND

 

Remembering all the time to not sign anything.

 

Have i got it right?

 

Based on the above 'particulars of the claim' is there anything specific i need to refer to or mention, or should i run with the required letters in their original template form?

 

Looking forward to your responses, and will keep you posted on progress.

 

Thank you

[rory32]

With no warning i have received the claim form stating the claimant is FV-1 Inc. Their address is in America.

 

Actually their registered address in the UK is

25 CABOT SQUARE

CANARY WHARF

LONDON

E14 4QA

Exactly the same as Morgan Stanley's registered address.

 

It would be useful if you gave some background to your situation and the account.

[lt4waf]

Thanks Rory.

 

This relates to a HSBC credit card i defaulted on in 2004.

 

At the time I basically over spent and could not keep up with payments. I became lazy and failed to face up to my responsibilities choosing to ignore any correspondance rather than sort it out. I did this with other creditors as well, and buried my head over most things.

 

I then forgot about it, and have heard nothing for years.

 

The balance the claim is for £3,516 is correct. But on top of this they are also adding 8% interest from the default date, which is adding another thousand or so, plus the court fees.

 

I'd just like some advice on what to do next and whether i should take the steps i've outlined in my original post?

 

It looks like HSBC have sold this debt to FV1, and they have instructed IND to recover the money.

 

I realise the weight of help on here is tremendous, and people are very busy, so any advice is really appreciated, and thank you for your time.

[jasonbloomberg]

The claimant claims .... The agreement(s) was/were terminated upon the Defendant failure to comply with the terms of the Agreement(s)

 

IANAL, and this has always confused me - If the agreement has been terminated, then how can there be any agreement to be enforced or assigned?

[rory32]

If the agreement has been terminated, then how can there be any agreement to be enforced or assigned

The agreement to provide running account credit that you pay back at x amount or x percent per month has been terminated, they need to do this before filing any court claim or sending to a DCA. However to enforce the account they would need to show that an agreement which complies with the Act was initially in place executed by the debtor.

[rory32]

1. Send the letter requesting a true copy of the Credit Agreement

they refer to via special delivery.

 

2. Send the request for information letter via special delivery.

 

Could i combine these into 1 letter?? Or is it best to send them separately?

Yes to both. Keep them as seperate letters. Send the CPR letter to IND and the CCA request to FV1 at their London address, also send them a SAR to get a list of any charges on the account.

3. Complete acknowledgement of service to the court.

 

4. Wait for response from IND

 

Remembering all the time to not sign anything.

 

Have i got it right?

Yes.

Based on the above 'particulars of the claim' is there anything specific i need to refer to or mention, or should i run with the required letters in their original template form?

Just run with the letters as they are.

With no warning i have received the claim form stating the claimant is FV-1 Inc.

I take it then that you have never received a Notice of Assignment or a Letter Before Action. Is that correct? Have you moved around since you last had this account with HSBC?

[lt4waf]

Hi Rory,

 

That's excellent thank you for your assistance.

 

I moved last year. No notice of assignment, or letter before action. They must have my correct address as that is where the Claim form was posted to.

 

I'll keep you posted on progress.

 

Thanks again for your help.

[lt4waf]

An update.....

 

Request for Information sent via special delivery......

 

Will complete acknowledgement of service online tonight....

 

Suppose it's a waiting game now to see what turns up from the claimant.

 

Thanks All

[lt4waf]

Update......

 

Now just need a further nudge in the right direction if at all possible...

 

Claimant: FV-1

Defendant: Me.

All correspondance to: IND

 

Today i received a reply to my CPR request from IND.

 

The only document IND have provided is a copy of the Account Sale Agreement between FV-1 inc and HSBC Bank plc & HSBC Trustee (C.I) Limited.

Noticed the page numbering goes "Page 1, Page 2, Page 6, No Page number (which is the page that details my account), Page 36, and Page 36 again! (at least it looks like 36, it is ineligible really.)"

 

I'll scan it in too. Are they allowed to leave pages out??

 

Could it be something they've just cobbled together? The signature pages are the last two pages, who's to say they are anything to do with the sale of my account with the perculiar page numbers?

 

IND also say they will request the relevant credit agreement along with terms and conditions relating to the account.

 

It looks like i'll be needing a holding defence for this? I'll try and upload the letter and Sale Agreement tonight or over the weekend if someone could then assist me with my questions...

 

Thanks everyone it's all quite exciting!

[lt4waf]

Just trying to change the title of me thread

 

doh.....it no work! ah well

[lt4waf]

Hello,

 

Well the damn Dell scanner decided to give up and die on me, so wasn't able to scan in the reply from IND.

 

With easter and things, i've let this drop from the top of my list somewhat!

 

Tried to get through to the Court today to check the date the defence has to be in by but on hold for too long.

 

I believe it is due in the next few days so could someone please please please help with a holding defence.

 

After my CPR request i still have not received a credit agreement, a notice of assignment, and i don't believe i've ever received a default notice either.

 

If someone could jump to my assistance i'd very much appreciate it.

 

Regards.

[rory32]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxx- Defendant

 

 

Defence

 

 

 

1. 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.

 

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

 

3. 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 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;

 

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 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) 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.

 

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.

 

4. Consequently, it is proving difficult to plead to the particulars as matters stand

 

5. Further to the case, on xx/xx/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

6. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

7. The courts attention is drawn to the fact that 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

 

 

 

8. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 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

 

9. Notwithstanding points 7 and 8, 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

 

10. The claimant is therefore put to strict proof that such a compliant document exists

 

 

11. It is neither admitted or 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.

 

12. Notwithstanding point 11, 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)

 

13. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

14. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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

 

15. 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.

 

16. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 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.

 

17. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

[lt4waf]

Thanks ever so much for the quick response Rory, your help is very much appreciated.

[undercovermoles]

I am in similar position, just filed my defence along these lines - quick question, if the claim is struck out does that strike out the debt too? or can they still pursue it via another court action properly prepared?

 

[lt4waf]

Back Again!! and as someone once said, 'Hullo Mole!'

 

Sorry i don't have an answer to your question.

 

Just to update my thread, i have now received an Allocation Questionairre (Form N149) and the case has been moved to my local court.

 

I have received nothing further from IND on behalf of FV-1, and nor have i received anything direct from FV-1.

 

All i have been sent from IND is a dodgy copy of the sale agreement between HSBC and FV-1 incorporated.

 

Outstanding is the CCA, Notice of Assignment, Default Notice, basically everything the original CPR request asked for.

 

I have read pt2537's advice in other threads and examples of the Draft Order for Directions, and also what to put in Section G - Other Information.

 

So that is what i'm going to do next with the following which i have lifted from another thread:-

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon

 Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,

 Document, contract or deed of assignment

 Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

 Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

 An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

---------------------

 

and also:

 

Section G - other information

 

1). It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

 

7.3 Where a claim is based upon a written agreement:

(1)

a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

 

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

 

 

2). Alternatively, if the court does not consider it just to strike out the claimant claim as set out in point 1, If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

-----------------------

 

 

Once again could someone with knowledge of this confirm that this is ok, and i've not missed anything out. I know Rory has been on hand with encouraging responses previously so once again, thank you for that.

 

Cheers

[lt4waf]

Update..........

 

Filled out the AQ and handed in to the court a couple of weeks ago.

 

Received a letter yesterday. Judge has given the claimant 21 days to do things properly!

 

That's all for now.......

[pt2537]

Right then, what does the order say (exactley) the claimant must do?

 

im interested to see the wording of the order as depending upon the wording, you may be able , if they dont comply with the order , to get the case thrown out

[lt4waf]

~wakes up from deep sleep~

 

I really should remember to look in on a more regular basis!

 

Hello PT, what an honour to have you look in! Prior to this i'd read a whole load of threads and noted the great advice and generous work you do.

 

The wording of the order is:-

 

IT IS ORDERED THAT

 

1. The claim form is struck out.

 

2. The claimant do by 22 May 2008 file a fully particularised claim form and particulars of claim.

 

------------------

 

I was a bit unsure as to what to do next as the 22nd has been and gone, and i've received nothing.

 

I called the court, and the lady just repeated what the order said.

They said they hadn't received a new claim from the claimant though.

 

So i'm not really much the wiser on what happens or what to do next.

 

I've thought about sending your letter from the sticky section, but the order already states the claim form is struck out.

 

Do i need anything in writing from the court that says, claimant not complied with court order therefore the end of the matter?

 

Promise i'll check back in a lot quicker than last time!

 

Kind Regards