Carter and split claim for shop direct 'debt'

[KFC]

HI, thanks for that info GodMother, it will help point us in the right direction and as to whats next.

 

 

The Judge said that we needed to prepare a proper defence, she hinted that we should just keep to facts about the Agreement exists or not.

 

 

Bit worried about just doin that, think it's better to use everything against the claim possible, what do you reckon ?

 

 

Anyway, done this defence, not sure if it's ok ?

 

 

 

In the Salford County Court

 

 

Claim number xxxxxxx

 

 

Betweeen,

-Claimant

 

 

 

And

 

 

 

 

- Defendant

 

 

 

 

 

 

 

 

 

 

 

 

Defence

 

 

 

 

 

 

 

 

1. I, xxxx of xxxxxxxxx make this statement as my defence to the claim brought by xxxxxxxxxx.

 

 

2. I do not acknowledge or recognise the debt to the Claimant.

 

 

3. No Credit Agreement exists, or has ever existed, and put the Claimant to strict proof thereof.

To date, the Claimant/Claimant’s acting solicitor, has ignored my request under the Civil Procedure Rules, and I have not received any such documentation requested.

In the absence of a signed Agreement containing the prescribed terms in schedule 6 of the the Consumer Credit (Agreements) Regulations 1983, the Court shall not make an Enforcement Order by virtue of section 127(3)of the Consumer Credit Act 1974.

 

 

4. No Letter of Assignment or Letter Before Action exists, or was ever sent to me, prior to litigation proceedings being issued, and put the Claimant to strict proof thereof.

 

 

5. No Default Notice exists, as required by section 87(1) Consumer Credit Act 1974, has been attatched to the particulars of claim.

 

 

6. No documents to support the Particulars of the Claim, have been offered, nor any dates etc of the purported Agreement, or account details been stated which the defendant, which were requested, can relate to, to establish what agreement it is, that this action is based upon. The defendant puts the claimant to strict proof thereof.

 

 

7. No correspondence from the Claimant, Cyclone Asset Management Ltd, has ever been delivered to me whatsoever, and put the Claimant to strict proof thereof.

 

 

8. The Claimant’s, Consumer Credit Licence expired December 2006, and must not carry out activities of this type, and they may be subject to prosecution for doing so, as it is a criminal offence. (see received email from office of fair trading – [email protected]) The word ‘must’ , makes it clear, that, no variation is acceptable, therefore, it cannot be dispensed with, as a De Minimus issue.

 

 

 

9. The Claimant, Cyclone Asset Management, does not exist in BT directory enquiries and is not contactable, Bryan Carter’s & Co Solicitors (acting on behalf of the Claimant) would not help, or give any information to allow contacting the Claimant, necessary to evaluate or prove either way, the alleged claim, the right of the defendant.

Also, Bryan Carter’s & Co Solicitors, admitted, I can’t contact Cyclone Asset Management Ltd, and said that I could only have contact through them. (see telephone transcripts and telephone conversation recording on cd)

 

 

 

10. The Claimant’s solicitor, has claimed that, they do not know who the Claimant is, and that, they do not hold any contact details for Cyclone Asset Management Ltd, their client, and I believe that, they have deliberately mislead me, to obtain monies not due to them.

 

 

 

11. The Claimant’s particulars of claim are vague, insufficient, 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 CPR even allowing for the constraints of the bulk issue system.

 

 

 

12. The Claimant appears to be a debt purchaser of delinquent debts and not a money lender, the Claimant seems to contend that they are entitled to monies due under said agreement made between the defendant and the Claimant Cyclone Asset Management Ltd. The defendant has no knowledge of this company or any indebtedness to them relating to any Agreement, the defendant has not entered into any Agreement with the Claimant, or client they refer to on the claim form, and therefore should it be the Claimant’s contention that they have a claim to monies under an Agreement between the defendant and another Creditor, the defendant seeks clarification of this fact and proof of legal assignment as required by Law of Property Act 1925.

 

 

 

13. Without clarification of the Claimant’s claim, the defendant is extremely disadvantaged and the Claimant’s Claim appears without merit or truth.

 

 

14. I believe, the Claimant, Cyclone Asset Management Ltd, and the Claimant’s Solicitor, Bryan Carter’s & Co, their conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore the Claimant’s behaviour is vexatious and wholly unreasonable.

 

 

 

15. Further to that above paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

 

16. Alternatively, if the Court decides, not to strike out the Claimant’s case, it is respectfully requested, that the Court, Order’s, full disclosure of the requested documents, compliant to the regulations, pursuant to the Civil Procedure Rules, for the avoidance of any doubt. Without production of the requested documents, the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

 

 

17. If necessary, the defendant seeks permission upon clarification of the Claimant’s case and disclosure of the necessary documents to amend this defence.

 

 

 

18. Consequently, I deny all the allegations on the particulars of the claim number XXXXXX, an do not know what case I have to answer.

 

 

 

Statement of Truth

 

 

I Miss xx xxxxxxx, believe the above statement to be true and factual to the best of my knowledge.

 

 

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

 

 

 

I left out the part about - ' splitting the claim ' as they have not broken the rules, until they bring another claim.

 

 

I need to get moving on this quickly, so, do you, or anyone else have any corrections, or any more ideas ?

 

Many Thanks.

 

 

 

 

 

[The GodMother]

HI, thanks for that info GodMother, it will help point us in the right direction and as to whats next.

 

 

The Judge said that we needed to prepare a proper defence, she hinted that we should just keep to facts about the Agreement exists or not.

 

 

Bit worried about just doin that, think it's better to use everything against the claim possible, what do you reckon ?

 

 

Anyway, done this defence, not sure if it's ok ?

 

 

 

In the Salford County Court

 

 

Claim number xxxxxxx

 

 

Betweeen,

-Claimant

 

 

 

And

 

 

 

 

- Defendant

 

 

 

 

 

 

 

 

 

 

 

 

Defence

 

 

 

 

 

 

 

 

1. I, xxxx of xxxxxxxxx make this statement as my defence to the claim brought by xxxxxxxxxx.

 

 

2. I do not acknowledge or recognise the debt to the Claimant.

 

 

3. No Credit Agreement exists, or has ever existed, and put the Claimant to strict proof thereof.

To date, the Claimant/Claimant’s acting solicitor, has ignored my request under the Civil Procedure Rules, and I have not received any such documentation requested. On date XX XX XX i sent the CPR. Signed for on XXXXXXXXX by claimants solicitors.

In the absence of a signed Agreement containing the prescribed terms in schedule 6 of the the Consumer Credit (Agreements) Regulations 1983, the Court shall not make an Enforcement Order by virtue of section 127(3)of the Consumer Credit Act 1974.

 

 

4. No Letter of Assignment or Letter Before Action exists, or was ever sent to me, prior to litigation proceedings being issued, and put the Claimant to strict proof thereof.

 

 

5. No Default Notice exists, as required by section 87(1) Consumer Credit Act 1974, has been attatched to the particulars of claim.

 

 

6. No documents to support the Particulars of the Claim, have been offered, nor any dates etc of the purported Agreement, or account details been stated which the defendant, which were requested, can relate to, to establish what agreement it is, that this action is based upon. The defendant puts the claimant to strict proof thereof.

 

 

7. No correspondence from the Claimant, Cyclone Asset Management Ltd, has ever been delivered to me whatsoever, and put the Claimant to strict proof thereof.

 

 

8. The Claimant’s, Consumer Credit Licence expired December 2006, and must not carry out activities of this type, and they may be subject to prosecution for doing so, as it is a criminal offence. (see received email from office of fair trading – [email protected]) The word ‘must’ , makes it clear, that, no variation is acceptable, therefore, it cannot be dispensed with, as a De Minimus issue.

 

 

 

9. The Claimant, Cyclone Asset Management, does not exist in BT directory enquiries and is not contactable, Bryan Carter’s & Co Solicitors (acting on behalf of the Claimant) would not help, or give any information to allow contacting the Claimant, necessary to evaluate or prove either way, the alleged claim, the right of the defendant.

Also, Bryan Carter’s & Co Solicitors, admitted, I can’t contact Cyclone Asset Management Ltd, and said that I could only have contact through them. (see telephone transcripts and telephone conversation recording on cd)

 

 

 

10. The Claimant’s solicitor, has claimed that, they do not know who the Claimant is, and that, they do not hold any contact details for Cyclone Asset Management Ltd, their client, and I believe that, they have deliberately mislead me, to obtain monies not due to them.

 

 

 

11. The Claimant’s particulars of claim are vague, insufficient, 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 CPR even allowing for the constraints of the bulk issue system.

 

 

 

12. The Claimant appears to be a debt purchaser of delinquent debts and not a money lender, the Claimant seems to contend that they are entitled to monies due under said agreement made between the defendant and the Claimant Cyclone Asset Management Ltd. The defendant has no knowledge of this company or any indebtedness to them relating to any Agreement, the defendant has not entered into any Agreement with the Claimant, or client they refer to on the claim form, and therefore should it be the Claimant’s contention that they have a claim to monies under an Agreement between the defendant and another Creditor, the defendant seeks clarification of this fact and proof of legal assignment as required by Law of Property Act 1925.

 

 

 

13. Without clarification of the Claimant’s claim, the defendant is extremely disadvantaged and the Claimant’s Claim appears without merit or truth.

 

 

14. I believe, the Claimant, Cyclone Asset Management Ltd, and the Claimant’s Solicitor, Bryan Carter’s & Co, their conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore the Claimant’s behaviour is vexatious and wholly unreasonable.

 

 

 

15. Further to that above paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

 

16. Alternatively, if the Court decides, not to strike out the Claimant’s case, it is respectfully requested, that the Court, Order’s, full disclosure of the requested documents, compliant to the regulations, pursuant to the Civil Procedure Rules, for the avoidance of any doubt. Without production of the requested documents, the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

 

 

17. If necessary, the defendant seeks permission upon clarification of the Claimant’s case and disclosure of the necessary documents to amend this defence.

 

 

 

18. Consequently, I deny all the allegations on the particulars of the claim number XXXXXX, an do not know what case I have to answer.

 

 

 

Statement of Truth

 

 

I Miss xx xxxxxxx, believe the above statement to be true and factual to the best of my knowledge.

 

 

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

 

 

 

I left out the part about - ' splitting the claim ' as they have not broken the rules, until they bring another claim.

 

 

I need to get moving on this quickly, so, do you, or anyone else have any corrections, or any more ideas ?

 

Many Thanks.

 

 

 

 

 

just maybe what i have added in red would be appropriate.

[KFC]

Yes, that would be better, I was thinking of editing, in red, to -

 

 

- To date, the Claimant/Claimant's acting solicitor, have ignored my request, under Civil Procedure Rules, and I have not received any such documentation requested, both verbally and in the Civil Procedure Rules Request letter dated XX XX XX, signed for on xx xx xx by the Claimant's solicitors.

As these documents are not forthcoming, it is noted, that the Claimant/Claimant's solicitor are trying to frustrare proceedings.

 

 

Also,

 

17. If necessary, the defendant seeks permission to amend this defence, if, upon clarification of the Claimant’s case and disclosure of the necessary documents, as these documents are unavailable to me, at this present time. In due fairness, these documents withheld are essential to adequately investigate this claim.

 

 

 

Should I attach copies of the evidence, such as letters, transcripts, Royal Mail receipts, emails, etc and a List of the Evidence, supplied ?

 

 

Do I just send this to the Court now ?

Edited September 16, 2008 by KFC

[TAY]

Hi,

 

I am no expert however we have / are in this situation. When responding to the defence we sent in two copies of the evidence which was just the basic letters not recorded recepts, i think they only want to know what you sent / received. I could be wrong in all of this. I did send two copies so they could send to Bryan Carter to see what we had against them but we had used most of this to get judgement set aside.

 

We were then given uptill the 12th september to sort this out ourselves before court precedings were made, we have not heard anything and still unsure as to what we owe cannot do any more. The agreement they sent down does not appear to have an account attached to us although the company involved had and agreed a settlement payment...Paid.

 

Hopefully we have heard the last.

Whatever happens if the court contacts you respond to them, even if BC say they have ended the claim ensure this is notified to you by the courts.

 

Really good luck, try not to worry to much (easier said then done) but so many people are in your situation and are helping one another.

[The GodMother]

Yes, that would be better, I was thinking of editing, in red, to -

 

 

- To date, the Claimant/Claimant's acting solicitor, have ignored my request, under Civil Procedure Rules, and I have not received any such documentation requested, both verbally and in the Civil Procedure Rules Request letter dated XX XX XX, signed for on xx xx xx by the Claimant's solicitors.

As these documents are not forthcoming, it is noted, that the Claimant/Claimant's solicitor are trying to frustrare proceedings.

 

 

Also,

 

17. If necessary, the defendant seeks permission to amend this defence, if, upon clarification of the Claimant’s case and disclosure of the necessary documents, as these documents are unavailable to me, at this present time. In due fairness, these documents withheld are essential to adequately investigate this claim.

 

 

 

Should I attach copies of the evidence, such as letters, transcripts, Royal Mail receipts, emails, etc and a List of the Evidence, supplied ?

 

 

Do I just send this to the Court now ?

 

rite your edits in red are fine just send it before the time frame is up.

 

Now re the evidence, letters, etc do not send them to the courts these will be part of the bundle of info u need to send in later.

[KFC]

Hi all,

 

Been a bit busy with this making sure defence etc is all ok.

 

Tay, hope all goes well, thanks for your support, hopefully you put Bryan Carters in their place and counter claim them for wated costs, with a wasted costs order and claim all your expenses back. Good Luck to You.

 

 

Thank you God Mother, your info was correct, but we only just received correspondence from the Court today September 25.

 

Just as you said, the Court has sent a General form of Judgment or Order, saying, it is Ordered that,

(1) Judgment be set aside. (2) The defendant do by September 23 file and serve on the Claimant a defence.

 

Notice, this was received 2 days after,

 

Anyway, the defence was delivered before september 23, by special delivery on September 22 and signed for, signature copy as proof.

 

Because the Court, was so slow at communicating,, I think that we should phone the Court tomorrow, asking them if anything else has been requested of us, ie, any evidence etc, and if or when a hearing date will be set, just in case, to be on safe side !

 

Keep you posted.

[The GodMother]

yes maybe it is a good idea. U must remember now ppl are more aware of there rights the courts are becomming snowed under with claims.

 

If you ring them advise them that the order had taken longer to arrive and as a result if u had not been at the courts then you would not have been aware of this. I would also advise that you not moaning would just like to know if anything esle has been done which u have not been made aware of.

[TAY]

Thank you KFC, as we have not heard anything i am going to contact the court and ask what is happening to find out how to proceed.

 

Sorry about saying send evidence in it was my mistake i was slightly ahead, there is so much into this at least people on here know what they are talking about.

[ODC]

Bet Mr Carter will drop this as if it was red hot

[KFC]

hi,

 

Phoned the Court, and they said they were 2 weeks behind, and that they would send everything out in due course, they did.

 

We got (1) Notice that a Defence has been filed and (2) Allocation Questionnaire.

 

But,

 

Next Day, received a Notice of Discontinuance from Bryan Carters, I'm a bit suspicious though !

 

 

The wording seems strange and they say they have sent a copy to the Northampton Court, when it says the Local Court on the top.

 

Bryan Carters, might be trying to hoodwink us,, so that we just think, thats it,, discontinued etc. when it's not, so we do nothing and we mess up.

 

So, either going to check with the Court, (but they might not give a reliable answer) or probably best, just to send, to the Court, a copy of it with a cover letter attached, to play it safe !

 

The Allocation Questionnaire, came through the post at the same time from the Court, so, I think we should fill it in and attach the Notice of Discontinuance/Bryan Carter Letter aswell, so the Court has all the right paperwork and cant say they not got the Allocation Questionnaire, failing to send it in time will make us loose etc. If they got all the paperwork, then the Court can decide.

 

What you think ?

[The GodMother]

rite on mondaay mornng u need to speak to northampton courts and say u have recieved something that claimst be a notice of discontuiance from the Claimant , BC but the same time u recieved a AQ from the courts could they plese advise you if they have had ca notice of discouiance from BC like BC have claimed?

 

if not do they want u to fill the AQ in and send a copy of the notice u got from BC or just the Notice u got from BC?

[creditcardmug]

Dont trust carters they've tried this trick before, unless the court have the notice of discontinuance make sure you file the AQ in time.

[The GodMother]

thats y i advised that u contact the courts

[TAY]

Dont trust carters they've tried this trick before, unless the court have the notice of discontinuance make sure you file the AQ in time.

 

 

We fell foul to that type of letter please continue until the COURT say otherwise.

 

We have had the stay extended so i don't think BC will drop so easy.

[KFC]

Surprise !

 

Thought it was just a trick at first.

 

Because the cover letter from Bryan Carters said - Notice of Discontinuance sent to Northampton County Court, phoned them first.

 

They said, they not dealing with it, so spoke to the Local County Court, they said that they had received notification from Bryan Carters, and that, the case is finished with !

 

Nearly time to get the Champagne out !

 

So, how do I go about Counter Claiming them or making a claim for Wasted Costs ?

( I was thinking of about £150- £200 ! )

 

Do I just fill in a court claim form, and pay the fee ?

[creditcardmug]

Well done, im sure others will be on to advise you how to claim your costs, im sure its just a matter of filling a form in.

[The GodMother]

nice one.

 

i would advise u write a letter asking for ur costs and see what they say.

[TAY]

Have you done anything to recover any costs? Just wondering how it was going. We now also have the letter of discontinuance will check with court later to see if they have received it.

 

 

To anyone else in this situation keep fighting. More success stories everyday.

[KFC]

I have sent a letter to the Court, asking them to confirm the status of the claim in writing so there can be no mix up, along with a fully completed Allocation Questionnaire before the deadline date, just in case, and stated that I would be happy to continue with the defence if needed.

 

Also asking, to advise about recovering Wasted Costs, and the time allowed for payment to be made.

 

Enclosed was a list of costs incurred, with a breakdown of each individual amounts, a quote from the Supreme Court Costs Office Guide 2006 showing the hourly rate allowed as £9.25 under CPD section 52.4 from the H M Courts Service website and brief copies of evidence to proove costs.

Also a copy of Bryan Carters cover letter and a copy of what claims to be a Notice of Discontinuance that was sent through the post.

 

So we are just waiting for a reply.

[KFC]

Hi all,

 

Still not heard anything concerning recovery of wasted costs.

 

So, I was thinking of sending a bill to Bryan Carters, complete with a breakdown of expenses and costs.

 

If they don't reply after a short time, then I was thinking of sending them a Reminder and a WARNING, explaining that if payment is not received by xx/xx/xx date, then a court order will be made against them.

 

The only problem with this, (if I am right), is that if it goes to trial, then it would be held in their local court, which would mean a lot of travel expense and time, can these expenses also be added to Bryan Carter's bill ?

 

Or should I do this in some other way ?

[thekat1979]

Just subbing as I'm just waiting on a letter from the benefits agency stating I'm on Income Support before I try and get a Bryan Carter CCJ set aside.

 

Well done on your success!

[KFC]

Hi thekat1979,

 

As you probably already know, it's all a bit scary to start with, but with the help on here, advice when you get stuck or just not sure about something, plenty to read too, other people's stories give an idea of what to expect.

 

Links for the Court Forms & info/advice :-

 

Ex160A - Court fee Remission/concession -

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex160a_e.pdf

 

N244 advice/form -

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244(cc)_0499.pdf

 

N244 form -

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

 

(1) You need to have a good story/argument, that stands up to criticism, and fill out n244 form. Explain briefly key points on Part A, then go into more detail in part C, explaining evidence you have. (you don't need to send any evidence at this stage)

 

(2) Send fully completed n244 form along with payment or ex160a form, complete with evidence of benefits (less than 1 month old). You sent to the Court where the Judgment was made against you.(Probably Northampton County Court)

 

(3) You then get notice from the court :- 'Notice of Transfer of Proceedings', the case is then transferred to you Local County Court (because you are an individual not a Company)

 

(4) Then you should receive a - 'Notice of Hearing Application' :- This gives you the date and time of hearing.

 

(5) At the Hearing to set aside - keep strictly to your story/arguement, the judge, (probably a deputy judge) will try to find any 'holes' in your story/argument.

 

They will ask questions to trip you up, they will try to make you admit to things, be careful, if you admit, then its Game Over!

As long as you deny it, don't recognize it, don't know what it's about, or other, etc. it should be ok - the claimant probably wont turn up, unless they are local.

 

(6) The judge should then set aside, if the grounds for obtaining a CCJ in the first place were flawed. You will be then asked to submit a defence within 14 days.

 

(7) Send your Defence to the court.

 

(8) Next you should receive a - 'General Form of Judgment or Order', this a note from court to advise the status of case and the date by which your defence has to be received by the court.

 

(9) Then you should receive an - Allocation Questionnaire, a form for the judge to decide the direction of the case, usually small claims track. The form also suggests Mediation, the National Mediation Service tries to sort out disputes out of court and to try to come to some sort of agreement without going through the courts. To be rid of this case, if your argument is justified, it's best to stick to your guns and fight it in court, all the way !

 

(10) By this stage Carters had given up and sent a Notice of Discontinuance, it unlikely that the claimant would fight further, some do, and you would get a hearing date from the court. I've not got past this stage yet, but presume it would just be as before and argue your defence to the judge after the claimant has put their case against you first.

 

Allocation questionnaire info :-

http://www.hmcourts-service.gov.uk/cms/files/form_n149_information.pdf

N149 Allocation Questionnaire form :-

http://www.hmcourts-service.gov.uk/courtfinder/forms/n149.pdf

EX307 Allocation info :-

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex307.pdf

 

If it is set aside, then it just goes back to the beginning, they can still try to make a claim against you, make sure you keep all paperwork somewhere safe for the next 6 years, jus in case they try again.

 

If you get it set aside, then they wont be likely to try again as their case is flawed in first place.

 

Good Luck

Edited January 14, 2009 by KFC
correction/tidy up

[Grizza]

I too have had dealings with them. They have taken £45.00 from my account on a few occasions, without permission, and phoned me the other day at work, saying if I don't come to an arrangement, they would contact my HR department and get the money direct from them (Its in their rules). I agreed £10.00 a month, and they still took £45.00 out of my account. Where do you stand legally?

[ODC]

They cannot get money directly from your HR department without a Court Order. If you only agreed to pay a tenner and they took more I would contact your bank. Cancel the DD now and if you must pay them do it by standing order

[The GodMother]

cca them stop paying them now and make sure u get everything in writing.

 

Dont listen to there we will go to ur HR depo lies then cant do that due to the DPA and without a court order they are likely to stay away from the courts as they seem to have lost a few cases and had to pay out compo due to it.