Help needed with a very tight one...thank you!!

[hsbclinkdcms]

Hi I received County Court summons for the 18/June/2008 for an alleged debt the claimant being Link.

 

The POC are;

 

The claimant claims the whole of the outstanding balance due and payable under an agreement and/or associated agreements made with the defendant in writing and dated --/--/2002 and assigned to the claimant. The defendant has failed to make payment as required by the agreement and to comply with a default notice or notices served by the Claimant and/or Assignor.

 

and the Claimant claims:-

 

1----.--

2. Interest pursuant to section 69 County Court Act (1984) at a rate of 8.000%per annum from 24/02/04 to 17/06/08 of ----.-- and thereafter at a daily rate of £-.--- to date of judgement or sooner payment.

 

I have returned the acknowledgement of service marked as defending the whole of the claim which was received on the 03/July/08 by Northampton.

 

I have completed CPR as per the letter on here and sent to Link which was received 03/July/08.

 

I am awaiting return of the information by the 17/July/08 which gives me (I presume) 4 days in which to file my defence and submit.

 

Is there anything that I have missed or should be doing in the meantime, I have no recollection of defaults assignments etc etc and certainly do not hold any of this paperwork.

 

These people really p****d me off, they broke all the guidelines, phoning me at work, unsociable hours, they even called my next door neighbour on a number of occasions saying could they pass a message on to ring ' Helen '.

 

Any help would be gratefully accepted, fantastic site by the way, just wish I had found it sooner.

 

Please, please let me know what I need to do.

 

Thanks.

Edited July 10, 2008 by hsbclinkdcms

[Docman]

Hi,

 

yes I think you will need to file by 17 or possible 18 July. Safer to file 2 or 3 days before.

 

At this stage, you should file an 'embrassed' holding defence in about a week, assuming of course that Link don't bothr to respond to your letter.

 

If you post up a draft, I'm sure folk will help out with comments.

[Docman]

You might like to think about something like this -

 

In the xxxxxxxx County Court

Claim number

Between

xxxxxxxxxxx- Claimant

and

XXXXXXXXX - Defendant

 

Defence

 

 

• I am HSBCLINKDCMS, of xxx Aanywhere, and I am the Defendant in this matter. 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.
  

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

• The claimants’ particulars of claim discloses 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, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

5. [DELETE THIS PARAGRAPH IF NO CCA REQUEST SENT] In respect of that which is denied, on xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

• Further to the case, on xx/xx/2007 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 list of charges applied to the account.
   
  
  
• To date the claimant has ignored my request under the Civil Procedure Rules, 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
   
  
  
• It is neither admitted nor 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.
   
  
  
• Notwithstanding point 8, 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)
  

• 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)
  

• Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses 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
  

• 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.
  

• Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 6 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.
  

• In addition I respectfully request that the court consider ordering this agreement unenforceable pursuant to s127 (3) of the Consumer Credit Act 1974 for the reasons previously stated .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,xxxxx, believe the above statement to be true and factual

Signed …………………

Date

[hsbclinkdcms]

Great Doc, thanks V much. I presumably file this with the court on the 17th or 18th once Link have failed to supply, and can I do this online?

 

Many thanks again.

[42man]

You seem to have done quite a bit of your homework already hsbcclinkdcms....and good post Doc !!....Although as I understand it you can file online, your defence may be too big (I believe there is a limit to the amount of words you can enter) and yes send your defence by guaranteed/recorded to the court and link....maybe 1 or 2 days before...

[pt2537]

Q. Since when could they claim 8% S69 County Courts Act 1984 interest on a regulated credit agreement

 

A. They cant, so add that to your defence The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database

 

its set out in S2 (3) (a) of the above link

 

they are pi$$ing into the wind on that one;)

[hsbclinkdcms]

You seem to have done quite a bit of your homework already hsbcclinkdcms....and good post Doc !!....Although as I understand it you can file online, your defence may be too big (I believe there is a limit to the amount of words you can enter) and yes send your defence by guaranteed/recorded to the court and link....maybe 1 or 2 days before...

 

Hi 42man, all the information and the course of action I have already taken is down to trawling through the excellent posts made by all the members who have already helped others. I must say though that I am still an absolute layman on these issues and would still appreciate and need advice from others about virtually every matter.

 

Thanks for that Pt, am I wrong in thinking that in the case of the claim of interest if this is wrongly added then the POC is wrong in itself. Would the court throw this out on that basis alone or would they simply deal with the outstanding balance alone and still proceed with the case ??

 

I'll probably need some advise on how and where to slip this into Doc's excellent defence statement (if anyone could help) and just for clarification which section of Doc's paper should be removed if they fail to provide a CCA ??

 

So my schedule at the moment should be;

 

17th of July Assuming that no CCA arrives by 1300 send a copy of the amended defence paper to the Court and Link by SD next day. Is it just the defence paper or other items such as photocopies of the SD slip to Link for the CPR and copies of that paper that I should send?

 

Anything else I need to do ??

 

Thanks for looking guys, I really appreciate this and by sticking with the site aim to repay if I can at some point in the future. I am learning as we go along and hope to be able to give others pointers in the future.

[pt2537]

.

 

Thanks for that Pt, am I wrong in thinking that in the case of the claim of interest if this is wrongly added then the POC is wrong in itself. Would the court throw this out on that basis alone or would they simply deal with the outstanding balance alone and still proceed with the case ??

 

Hi,

 

Sorry but it doesnt work that way im afraid,

 

in your case, they are trying to claim for something which Statute prohibits, so simply they are not entitled to it

 

however, that doesnt make their claim fall over directly, but its a good start

 

Regards

 

Paul

[hsbclinkdcms]

Great Paul thank you, I thought that might be the case, as you say it is a good start and shows again what these people will try to manipulate out of unsuspecting persons.

Is it possible for someone to provide a statement relating to this and where to place in Doc's defence statement.

 

Thanks again.

[pt2537]

i would add.....

 

the defendant further notes that the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. the defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974

[hsbclinkdcms]

Excellent thank you very much.

 

Can someone confirm that is it until the 17th of July, nothing else needs to be done until then unless Link provide the CPR request (at which point I will post what has arrived) ??

 

Thanks once again

[hsbclinkdcms]

Just spent all night going over other threads and I think I've got the gist of the early part of these actions, could some kind person please run over this thread and confirm that;

 

On the 17th of July Assuming that no CCA arrives by 1300 send a copy of the defence paper to the Court and Link by SD next day. Is it just the defence paper or other items such as photocopies of the SD slip to Link for the CPR and copies of that paper that I should send, or are there other items that I will need to supply to the court ?

 

Anything else I need to do ??

 

Trying to get things organised and after having read through some of the other threads am starting to become somewhat worried. I try to balance this with the successes but am somewhat worried being a complete layman.

 

Help would be sincerely appreciated, Thanks.

[Docman]

Hi there,

 

There is a limit of 8000 CHARACTERS when filing electronically. I think the text I drafted runs to about 6000, so there should be some room for amendments.

 

I don't think you have to file exhibits when filing the defence electronically but obviously, they must be available for when everything gets transferred to a local county court.

[hsbclinkdcms]

Thanks docman for the defence and for all your help so far.

 

Time to wait and watch the ball role !

[AndyOrch]

Hi

You dont send a copy of your defence to the claiment only the court.They will forward a copy on reciept of your defence.

Close of buisness is 4.00pm also

 

Regards

Andy;)

[hsbclinkdcms]

Q. Since when could they claim 8% S69 County Courts Act 1984 interest on a regulated credit agreement

 

A. They cant, so add that to your defence The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database

 

its set out in S2 (3) (a) of the above link

 

they are pi$$ing into the wind on that one;)

 

Hi pt, this debt is not already subject to a judgement, this is at pre CCJ stage...Am I being an idiot here in thinking that what you quote is for post judgement debts ?

 

The claim is for some £4700 with added interest of some £1600, can anyone advise whether this will have an outcome on how it is tracked, can I seperate the two to get it Small claims and what the potential consequances will be if I fail?

 

Also a week has passed and no response has been received (they have one more week), at any point during or after this period should I send an SAR off to them or their Sols (please advise) as I seem to be getting some mixed messages with regards to this from some of the other threads.

 

In need of help and guidance please, I am not really conversant just trying to be.

[hsbclinkdcms]

Bump...sry

[AndyOrch]

Hi HSBC

 

I presume PT was refering to the Claiments P.O.C where interest will be added to the claim up to judgement and after in some cases,not the interest contained in their claim

 

Regards

Andy

[Docman]

Hi pt, this debt is not already subject to a judgement, this is at pre CCJ stage...Am I being an idiot here in thinking that what you quote is for post judgement debts ?

 

The claim is for some £4700 with added interest of some £1600, can anyone advise whether this will have an outcome on how it is tracked, can I seperate the two to get it Small claims and what the potential consequances will be if I fail?

 

Also a week has passed and no response has been received (they have one more week), at any point during or after this period should I send an S.A.R - (Subject Access Request) off to them or their Sols (please advise) as I seem to be getting some mixed messages with regards to this from some of the other threads.

 

In need of help and guidance please, I am not really conversant just trying to be.

 

hi

 

I think you will find that if the total claim (both capital & interest claimed) exceeds £5000, the case will be allocated to the fast track.

[pt2537]

Hi,

 

When the Allocation Questionnaire arrives, i would highlight the errors on the claimants POCs and ask that the case be allocated to Small claims track as they have included figures that they are not entitled to claim which has made their claim exceed the 5000 SCT limit

[hsbclinkdcms]

Thanks v much guys, I try to keep up with things and have read through the relevant law that pt supplied, it just appeared like a post judgement thing....but then I guess that's why I'm here cos I don't know !

 

Thanks again.

[hsbclinkdcms]

2. Interest pursuant to section 69 County Court Act (1984) at a rate of 8.000%per annum from 24/02/04 to 17/06/08 of ----.-- and thereafter at a daily rate of £-.--- to date of judgement or sooner payment.

 

Just a thought on this, if the timing is the 24/02/04 of the original presumably default notice being issued, although I have no firm knowledge my presumption is that this will have been issued by the OC....does this have a bearing on when the DCA can claim interest from ??

[hsbclinkdcms]

Hi,

 

2 posts left and no contact from the DCA at all. As this is tight it would be helpful if someone could run an eye over this as I'll need to get it off on Thursday morning. Comments please, I really need help with this, thanks.

 

I'll send this SD next day delivery, is there anything else that I need to send with it such as proof that the request for info was sent (copy of Royal Mail delivery receipt, copy of request etc).

 

Do I need to send anything to the DCA, is it advisable to do so ?

 

 

 

In the xxxxxxxx County Court

 

Claim number

 

 

 

 

 

 

 

Between

 

 

 

xxxxxxxxxxx- Claimant

 

 

 

 

 

 

 

and

 

 

 

 

 

 

 

XXXXXXXXX - Defendant

 

 

 

 

 

 

Defence

 

 

• I am HSBCLINKDCMS, of xxx Aanywhere, and I am the Defendant in this matter. 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.
  

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

• The claimants’ particulars of claim discloses 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, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

 

 

 

5. In respect of that which is denied, on xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

• Further to the case, on xx/xx/2007 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 list of charges applied to the account.
  

• 
   
   
  
• To date the claimant has ignored my request under the Civil Procedure Rules, 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
   
   
  
• It is neither admitted nor 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.
   
   
  
• Notwithstanding point 8, 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)
  

• 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)
  

• Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses 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
  
• the defendant further notes that the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. the defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974
  
• 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.
  
• Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 6 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.
  
• In addition I respectfully request that the court consider ordering this agreement unenforceable pursuant to s127 (3) of the Consumer Credit Act 1974 for the reasons previously stated .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,xxxxx, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

Anything else that needs to be done ?

Edited July 15, 2008 by hsbclinkdcms

[hsbclinkdcms]

bmp.....sorry but I need some help please.

[hsbclinkdcms]

Bmp - sorry, can anyone check the defense out and advise please, I need to get this off to,orrow and am beginning to panic a bit !