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Charge Card and Credit Card, On One Court Claim


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Don't know which way to approach this and a few pointers wouldn't go amiss.

 

Background...

 

Had a charge card and a credit card with the same company, got into trouble keeping up with payments so they stopped both cards and demanded total amount in one go.

 

No way could I do that so explained the situation to them. They then passed on both accounts to a legal firm who sent one letter telling me to pay both accounts in full within 7 days or be made Bankrupt.

 

They then issued a court claim (not for Bankruptcy) but for both cards on one claim.

 

The charge card is just over 2K and the credit card is just over 5K.

 

With the two together it is definately going to be fast track and alot of costs etc, but if they were 2 individual claims then one would be small claims and the other may just be set at small claims because it is just over 5K.

 

Can they put the two different accounts on one claim?

 

I have sent the AOS and the CPR request but I have had nothing back. A defence has to filed by this Friday.

 

I can put something together using info from Paul/Toms/Cars and everyone elses previously posted defences, but i cannot find any postings related to a charge card, which does not come under the CCA 1974.

 

So if anyone can offer some advice about this 2 Card claim, it would as always, be very much appreciated.

 

Regards

 

Santos

Springfield

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Santos...i'm not sure about the charge card aspect (could it be worth fighting on the charges and default aspect possibly ?)....if however they have not provided any of the documents required for the CPR, then there are some good defences available on these forums (as you have seen)....

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Thanks for looking in 42man,

 

I will be going down the lack of response to the CPR route and permission for an ammended defence etc.

 

I am just struggling to get my head round the 2 card claims on the one POC.

 

Can't find anything type specific, I'll keep on with the search though. Still got tomorrow night to finalize and get some opinions.

 

Regards

 

Santos

Springfield

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Which ever way you look at it they need to produce agreements when it goes to local court stage so I would suggest the standard defence issued by pt adapted for your circumstances would suit quite nicely

Live Life-Debt Free

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Well here is a draft defence.

 

If someone would be kind enough to have a quick read through, to make sure it reads ok (if that sounds right).

 

I have struggled a bit because one is a charge card and one is a credit card.

 

 

Between

 

Nasty Bank UK Limited - Claimant

 

and

 

 

Santos L Helper - Defendant

 

 

 

Defence

 

 

 

1. I Santos L Helper of Springfield, am the defendant in this action and make the following statement as my defence to the claim made by Nasty Bank UK Limited.

 

2. 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.

 

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

 

4. The claimants' particulars of claim 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 agreements 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 agreements 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 defaults, and proof of any amounts outstanding on the alleged accounts, have not been served attached to the claim form.

 

5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

6. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence, I requested on xx April 2008, the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to true copies of the Agreements referred to in the particulars of claim including all data held on me by Nasty Bank UK Limited from all relevant filing systems, including a complete list of all transactions and charges on the above accounts, including charges, fees and interest. Copies of any correspondence relating to the accounts, and copies or transcripts of any telephone calls. Also any default notices issued in relation to the above accounts, a complete list of all transactions and copies of statements for the entire duration of the agreements.

Also any other documents the Claimant seeks to rely on in court. (Attached marked santos 1).

 

7. To Date the claimant has failed to comply with 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.

 

8. The claimants failure to provide the agreements and other documents referred to within them, along with copies of any default notices, impacts upon the courts ability to make an enforcement order and places me at a distinct disadvantage as I am a litigant in person.

 

9. It is neither admitted or denied that any Termination Notice was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

10. The Credit Card Agreement comes under the regulations of the Consumer Credit Act 1974, and as such, 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, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.

 

11. The courts attention is drawn to the fact that the 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.

 

12. Notwithstanding the above, it is also drawn to the courts attention that no default notice as required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim.

 

13. 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).

 

14. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

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 and Practice Direction 16.

 

16. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

 

17. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

 

18. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one. For the attention of the court I reproduce schedule 3 section 11

 

11

The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

Statement of Truth

 

I, Santos L Helper, believe the above statement to be true and factual.

 

Santos l helper

 

7 May 2008

 

How does that look?

 

Regards

 

Santos

Springfield

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  • 4 months later...

Update.

 

I sent off the defence with the AQ to the court and the claimant and got a without predjudice letter back from the solicitors acknowledging receipt of AQ and offering me an £800 discount if I wanted to settle now. Don't have any money so they could offer me £5K discount and I still couldn't pay outstanding amount.

 

The case has now been transferred to my local court. I still haven't received anything I asked for under CPR rules, eg card agreements, default and termination notices etc.

 

I have now received off the courts, this letter,

 

Standard order for stay for

 

settlement with consent of all the parties

To the defendant

District Judge John Deed orders that this claim is stayed until xx October 2008 to enable the parties to attempt settlement.

On or before xx October 2008 one of the following steps must be taken:

either

the claimant must notify the court that the whole of the claim has been settled; (see note (i) below)

or

the claimant or defendant must write to the court requesting an extension of the stay period, explaining the steps being taken towards settlement and identifying any mediator, expert or other person helping with the process. The letter should confirm the agreement of all the other parties, (see note (ii) below)

or

all the parties must file a completed allocation questionnaire at the court. Where a settlement of some of the issues in dispute has been reached, a list of those issues should be attached to the completed questionnaire.

The list must be agreed with the other parties and must indicate that it has been agreed.

Date xx September 2008

Note (i): Where settlement of the claim is achieved before the end of the period of stay, the following will be taken to include an application for the stay to be lifted;

(a) an application for a consent order to give effect to the settlement.

(b) an application for approval of a settlement where one or more of the parties is a person under a disability; and

© the filing of a notice of acceptance of monies paid into court, or an application to accept monies paid into court out of time.

Note (ii); Extensions to the period of stay will generally be no more than 1 month.

The solicitors must also have got the same letter because I have a letter from them, again offering a discount and asking for acknowledgement of their AQ.

 

I work away so did not open these letters till lunch time today, they all came last week sometime.

 

Anyway I am in need of a bit of guidance as to how I proceed with this case.

 

Do I write to the court and ask for more time because I still have not received the documents asked for on which the basis of the claim rests?

 

Do I write to the solicitors again asking for said documentation?

 

Or is there another way to approach this?

 

I have a week+ to notify the court.

 

Any advice or guidance as always appreciated.

 

Regards

 

Santos

Springfield

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Update,

 

Sent a letter to solicitors asking again for copies of agreements, had no response so how do I proceed now?

 

Should I write to the courts explaining what is happening?

 

or

 

Should I fill in another AQ n150 which would basically be the same as the first one I sent because until I see any agreements I am stumped as which way to handle this.

 

Also would they have to produce the agreements before a trial under disclosure of documents?

 

Any help or ideas would be appreciated as always.

 

Regards

 

Santos

Springfield

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Santos, I think at some stage you can ask for a strikeout.....but i'm not too sure on what stage you can do this, I presume it is when the judge orders it.....but again i'm not too sure at this stage what is the best to do....hopefully you will get some more input here...

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Hi Santos

 

To further the above case you would need to submit an AN (Application Notice) Will cost in the region of £55-£75 but may well be worth while in your predicament

 

Read this thread subscribed.gifHelp with Allocation Questionaire As Soon As Possible Please

 

Regards

 

Andy;)

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Hi 42man

 

Thanks for looking in again, I am still reading and trying to absorb all the information I read, got till early next week to send something into court.

 

Hi Andyorch

 

Thank you as well for taking a look. I have been following the thread you posted and get the jist of what you are suggesting, unfortunately I haven't got the money to do this at the moment, but any other suggestions would be appreciated.

 

If I have to send another AQ do I send an ammended defence as well, it may be a good thing because I didn't put any reference to the sec 69 added interest they were claiming on the first defence.

 

Many thanks to you both,

 

Regards

 

Santos

Springfield

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UPDATE

 

Had a reply from the solicitors regarding my last letter.

 

It says that due to the age of the accounts and the credit card firm moving offices, they are , at the moment unable to locate the 2 agreements,

 

But

 

would I be so kind as to write to them and tell them that the statements of accounts I have received are true and accurate as to expenditure on the accounts as are the payments made by me in the past, to the accounts.

 

They then state that they would also like to bring the matter to a quick conclusion and look forward to my reply with regards to the above.

 

Well does anyone have a suitable reply which I could send to them and the court :confused:

 

Their whole POC was brought on the 2 agreements which they are

 

" unable to locate at the moment "

Any help as always appreciated.

 

Regards

 

Santos

Springfield

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Santos....could you edit this possibly ? (courtesy of PT2537)

 

Dear Sir / madam

 

I write further to correspondence from your solicitors LCS dated xx/xx/2008

 

In the letter, your solicitors make clear reference to bringing legal action against me on your behalf for a debt, which they claim, has been assigned to your company by XXXXX CREDITOR

 

Since you appear to be taking an aggressive stance with this matter and despite a reasonable request for you to substantiate your claims, for the avoidance of doubt a request was made to your company pursuant to the Consumer Credit Act 1974 for a copy of the executed agreement upon which your claim for monies is founded and to date no documents have been forth coming from your company

 

Therefore take notice,

 

It is my intention to bring an action against your company pursuant to Section 142(1)(b) of the Consumer Credit Act 1974. I am of the belief that the document upon which your claims are based does not comply with the requirements of the Consumer Credit Act 1974. However your refusal or failure to supply me this information is causing me some problems, so I ask that you provide me a copy of the credit agreement which you are basing your claims so that I can have the document looked over by my legal advisors, if you refuse my request, I shall be forced to make an application for pre-action disclosure in my local County Court as it will be my contention that I have a claim against your company with a genuine prospect of success and disclosure is required to provide me the documentary evidence that I need to bring this action and which I am legally entitled to as well

 

 

Therefore I require a copy of the credit agreement, this will need to be the signed copy as this is now subject of litigation and as you will be aware S127 (3) of the Consumer Credit Act 1974 makes clear that a signed document containing the prescribed terms is a precursor to enforcement. I also require that you provide me with the notice of assignment which confirms your rights to make demands for monies against me and finally I require that you provide e evidence of the service of the default notice required by s87 (1) of the Consumer Credit Act 1974. Finally I reserve the right to ask the court to order production of the Deed of Assignment should it be considered necessary, I do not expect you to supply this until order to by the court

 

I require these documents to be supplied within 7 days from receipt of this letter, if you do not comply or fail to indicate a time frame for compliance along with a blanket withdrawal of the threats from your solicitors I will make an application before the court for disclosure as previously outlined, I shall also include a request for costs as a result of the application and shall reserve the right to produce this letter to show that I have made attempts to obtain the information and shall ask the court to consider this when the issue of cost falls due

 

I look forward to your compliance with my request

 

 

Regards

 

 

xxxxxxxxxxxxxxxx

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Thanks 42man,

 

That is certainly a good letter, but I think its too much for what I need.

 

I was thinking more along the lines of,

 

"You haven't got the agreements you are using as the basis of your claim so may I suggest that until you have found said documents we stop wasting everyones time.

 

A copy of this letter is being sent to the court as well."

 

What do you think?

 

I have until Wednesday to send something to the court, be it a letter similar to the above or another N150 allocation questionairre.

 

Any suggestions will as always be appreciated.

 

Regards

 

Santos

Springfield

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I think I would send a copy of their letter to the court, quoting the relevant section of the CCA and ask that the claim be dismissed.

If my comments have been useful please click the scales and let me know.

 

Me vs Rockwell/Tessara/RBofS: pending.

Me vs MBNA/1st Crud: Discontinued.

First Direct Overdraft: CCJ won.

IR: 2 CCJs 1 won.

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BT: pending

others to come....

 

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I think I would send a copy of their letter to the court, quoting the relevant section of the CCA and ask that the claim be dismissed.

 

 

Hi AM

 

The credit card comes under the CCA which can be dealt with easier than the charge card which is not regulated by the CCA.

 

There is not alot of information around with regards to charge cards and I would rather deal with both cards whilst at court.

 

Two birds with one stone etc.

 

Regards

 

Santos

Springfield

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