Phoenix Recoveries court summons - help!

[kologna]

My gosh!!!!!! - i received the shock of my life this week, when I recieved a claim form from the Northampton (CCBC) on behalf of Phoenix Recoveries (UK) Ltd.

 

The debt in question relates to a credit card that i had about 4yrs ago, but i never had a payment plan in place with Phoenix or any debt collection agency.

 

In fact, i wrote to the credit card company last year disputing the amount owed as i believed alot of the debt consisted of unfair credit card charges (sending a SAR and LBA, as advised by members on this forum).

 

I guess to my only regret, is that i never followed up the SAR or LBA's to the bank and subsequently did not get a reply....and now this!

 

What are my options regarding this amount claimed in the courts by Phoenix - i have not received any phone calls from them to remind me that the debt was being recovered by themselves.

 

I'm really worried about bailiffs turning up at my home....and i'd really like to fight them tooth and nail for the amount they are asking me to pay - as i have read some horrible stories about them, and how they go about collecting their accounts.

 

Please help as best as you can - they have not given me much time to reply to their request.

 

 

H E L P !!!!

[pt2537]

Hi,

 

Firstly, DONT PANIC!!

 

the bailiffs arent gonna turn up at your door,

 

Who is the credit card for starters?

 

what is the date on the court summons? it should be in the top right hand corner

 

what are their particulars of claim? obviously dont post any personal information

 

can i also ask if the account number is on the claim form and is it correct

 

 

Regards

 

Paul

[pt2537]

thread moved to legal issues

[kologna]

Thanks Paul

 

It is a LTSB credit card.

 

The date of the summons is 08/07/2008.

 

Particulars of claim are:

"The Claimants Claim is for the balance due under an agreement which is now all due and payable.

 

The defendant agreed to pay monthly installments under number xxxxxxxxxxxxxxxxxx but has failed to do so.

 

And the claimant claims the sum of £xxxx.xx

 

The claimant also claims interest thereon pursuant to S.69 County court act 1984 limited to one year of the date hereof at the rate of 8% per annum amounting to £xxx.xx"

 

Paul - i am not sure whether the credit card number is accurate.

 

Hope the above helps you - look forward to your reply.

[AndyOrch]

Hi Kologna

 

You need to be sure that you've got your dates right in respect of when the AoS and defence needs to be filed. For example, if you receive a Court claim with an issue date of the 12th July 2008, you are given 5 days for service (delivery) so that takes you to the 17th July. You then have a further 14 days to file your AoS and if you need a further 14 days to file the defence, that is available to you. So in all, you get 33 days in total. If you are unsure, either post up the issue date here, or ring the Court ASAP, the number is on the front of the claim form, on the right hand side tiny print.

With regards to your intentions and if you intend defending then you need to do CPR 18 request again ASAP and give them 14 days to respond.Subject to their complience this will form the basis of your defence beit an holding defence or final.

 

I trust the above is of help

 

Regards

Andy:wink:

Edited July 12, 2008 by Andyorch

[AndyOrch]

Here is the CPR 18 request

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

Send G/Delivery and keep proof of postage

 

 

Regards

Andy:-)

[kologna]

Thanks Andy

 

In your reply, you mention:

"You need to be sure that you've got your dates right in respect of when the AoS and defence needs to be filed....."

 

Does AOS = Acknowledgement Of Service???

 

Within the contents of the summons, i have been provided with a claim number which i can use to log on to http://www.moneyclaim.gov.uk

 

Is it imperative that i reply to the claim using the online option or written CPR18.....or both:confused:

 

????

 

 

Kolo

[kologna]

OK - did some more reading on the forum and AOS = Acknowledgement of Service.

 

Should i use the claim number on mcol - or just send written cpr18 special delivery...or both?

 

Ta

 

 

Kologna

[robcag]

OK - did some more reading on the forum and AOS = Acknowledgement of Service.

 

Should i use the claim number on mcol - or just send written cpr18 special delivery...or both?

 

 

Hi K

 

You need to do both.

 

You need to do your AoS online within the timeframe given on the claim form (which is before 5+14 days from the date of issue). You need to state whether you are defending all/part of the claim. If you do not do this within the time stated above you will probably get a judgement awarde against you by default.

 

By doing your AoS within the timeframe you will then get an additional 14 days to submit a defence (ie 5+28 days from date of issue of the claim form), which, depending on whether you have received any of the further information requested in your CPR18 request, may have to be a 'holding' defence which someone will help you with nearer the time.

 

So you need to get your CPR18 request off ASAP!

 

Cheers

Rob

[kologna]

 

You need to do your AoS online within the timeframe given on the claim form (which is before 5+14 days from the date of issue). You need to state whether you are defending all/part of the claim. If you do not do this within the time stated above you will probably get a judgement awarde against you by default.

 

The deadline date for submission of my AOS online fell on a weekend. Mine deadline was Sunday 27th, but i submitted it on the Monday 28th before the courts opened. Shall i run for the hills now!!! .... or will the claim be processed as normal giving me a further 14 days to defend my claim?

 

Kolo

[creditcardmug]

The deadline date for submission of my AOS online fell on a weekend. Mine deadline was Sunday 27th, but i submitted it on the Monday 28th before the courts opened. Shall i run for the hills now!!! .... or will the claim be processed as normal giving me a further 14 days to defend my claim?

 

Kolo

You should be ok just!!

[AndyOrch]

Hi Kologna

 

I would also check on screen MCOL to view the status of the claim it should say AoS submitted.Did you print off your your time reciept as proof of submission.Also follow up with a call to the Court (phone number tiny print top right of the summons) just to check it as gone through.

As CCM states you should be ok.

 

Regards

Andy;)

[kologna]

Hi

 

Where can i find a letter template that would request the validity of a DCA's claim that i owe them money? (apart from the CPR18 - is there another template)?

 

Thanks

 

Kolo

[kologna]

Another dumb question ----- i found the answer here :

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html

 

CPR18 sent off today by special delivery..will keep you posted.

 

Kolo

[kologna]

Hi

 

No further correspondence from Phoenix apart from a letter advising me that they have applied for a county court judgement to be entered against me in respect of the outstanding balance.

 

They have not replied to my CPR18, which was sent recorded delivery. What do i do next??

 

Do i have to let the court know that they have not responded within the timeframe given (14days)???

 

|Help|

[AndyOrch]

Hi

 

Kologna did you check with Court to see if your AoS was successful? I remember you had a quiery with it.Does it say on screen AoS submittd ? When has your defence tobe submitted?

Just a little alarmed by the letter you quote they may well be trying to go for Summary Judgement.

 

 

Update us please

 

Regards

A;)ndy

[kologna]

Andy

 

My online mcol access has been suspended for 2 hours, as i got my password incorrect...just got off the phone from the county court, and they said that i need to get my defence in ASAP, as Phoenix have requested judgement...even though the scoundrels have not responded to my CPR18.

 

The person at the court advised me to send a fax in the Defence and Counterclaim today, stating that i have requested information regarding the outstanding balance but am still awaiting a response.

 

...is there any particular wording that i need to use in my defence?

[AndyOrch]

kologna did you not check when your defence had to be in by? Is today the deadline?

dont worry about ther CPR 18 request they never reply anyway we will have to knock out a rush Draft Holding Defence and input today.

 

 

 

Kologna are you there?

 

 

Regards

 

Andy

Edited August 13, 2008 by Andyorch
addition

[kologna]

Hi Andy

 

Sorry i could not get back to you sooner...i have been abroad for a few weeks, and the jetlag was so severe that i am now coming to.

 

You mentioned a draft holding defence - is there a template that i can use, or shall i just rustle up my own and fax off the defence & counterclaim part tomorrow?

 

Regards

 

kologna

[AndyOrch]

Hi

 

There is no template im afraid they have to be drafted to your particular case when is the deadline for your defence?

 

Regards

 

Andy

[kologna]

The issue date was 8th July 2008, i filed AOS on 28th July 2008. This was successfully filed.

 

My deadline for filing my defence should be 14 days after the AOS is filed - correct?

 

I am back online with mcol - and am wanting to submit my defence tonight.

 

Any guidance on what to include upon submission of my defence would be greatly appreciated.

 

 

regards

 

 

Kolo

[kologna]

Not sure what happened to my post just now..seem to have disappeared...but let's try again:

 

date of issue = July 08

AOS filed successfully = July 28

defence is submission deadline is today, but when i spoke to court today, they said that i should be fine so long as i submit a defence asap...

[AndyOrch]

Ok Kologna,

 

It usually takes me the best part of a day to draft a particularised defence to suit the claim so you will appreciate that you have left things a little late.

 

The best we can hope to do is copy one of my exsisting defences to suit your claim and you can ammend and post up for it to be checked.

 

Im afraid your jetlag could cost you a CCJ for the next six years.

 

DEFENCE

 

 

The Defendant denies that he/she is liable to the Claimant as alleged in the Particulars of Claim, or at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136 1, of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd 1915, under The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136 1 of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke 1956.

 

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - 1956 2 All ER 169

 

The Claimant, possessing no legal right to claim monies allegedly owed, has acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed regarding that which is denied, contains penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd 1915, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

 

It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970.

 

Regarding that which is denied, on the XXXXXXX, a request was made under section 78, running account credit, of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by recorded delivery to Barclays with the statutory £1.00 fee enclosed. It was received on the XXXXXXX Claimant had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit Prescribed Periods for Giving Information Regulations 1983.

In response to the request, a letter dated the 3/12/2007, with an accompanying document was received from Barclays. It is denied that the document furnished is a copy of a credit agreement.Barclays had provided an application form which is not a credit agreement within the meaning of sections 60 and 61 of the Consumer Credit Act 1974. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the original creditor are in default of said request under section 78 6 a of the Consumer Credit Act 1974.

 

Regarding that which is denied, on XXXXXXX 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. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, Claimants are in default of said request under section 78 6 a of The Consumer Credit Act 1974.

 

 

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, especially given that I am Litigant in Person.

 

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale or at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

 

Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. It is therefore averred that this claim is brought in relation to a personal loan & overdraft which is credit as defined within the Consumer Credit Act 1974, 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 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

 

 

 

 

It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons.

 

 

Thats the best I can do at this short notice

 

 

Regards

 

Andy

Edited August 13, 2008 by Andyorch

[AndyOrch]

Thanks Paul

 

It is a LTSB credit card.

 

The date of the summons is 08/07/2008.

 

Particulars of claim are:

"The Claimants Claim is for the balance due under an agreement which is now all due and payable.

 

The defendant agreed to pay monthly installments under number xxxxxxxxxxxxxxxxxx but has failed to do so.

 

And the claimant claims the sum of £xxxx.xx

 

The claimant also claims interest thereon pursuant to S.69 County court act 1984 limited to one year of the date hereof at the rate of 8% per annum amounting to £xxx.xx"

 

Paul - i am not sure whether the credit card number is accurate.

 

Hope the above helps you - look forward to your reply.

 

 

Just Bumping up the Claimants P.O.C

[creditcardmug]

Not sure what happened to my post just now..seem to have disappeared...but let's try again:

 

date of issue = July 08

AOS filed successfully = July 28

defence is submission deadline is today, but when i spoke to court today, they said that i should be fine so long as i submit a defence asap...

 

Are you sure the issue date was the 8th, count 33 days from then,

the AOS was late as well so im surprised they didn't get judgment then