TBI Claimform - old HFC Credit card Debt - **WON** - default notice fee but NO default produced

[Canaan]

I hope someone can point me in the right direction of what to do, today I received court papers from clerkenwell and shoreditch county court regarding an old credit card debt (account opened 1998, last payment 2004). The debt has been sold to TBI. I am putting together a letter to request a CCA etc as per the template on this site. What I am stuck on is what do I do with the court papers? How do I let them know about the CCA request? I am in such a tiz I can't find the relevant threads. Any advice on what is likely to happen would be very gratefully received. As a point of interest my surname is spelt incorrectly on the court papers.

 

Thanks in advance

Canaan

[buffyoo7]

Hi i think what you need to do is acknowlegde the claim with the court i did it on line it was really easy

that gives you a further 14 days to put in your defence (28 days from when the court papers where served)

i am going through this myself at the moment

i dont think you need to let the courts know about the cca yet but i think you might be better sending a cpr to TBI have a read of my thread

court papers from welcome finance i have had some good advice on there

good luck with it all there are people on here who can really help

Buffy x

[Canaan]

Thanks Buffy.

The court papers I have got don't give the option for replying online it has to be done by paper. The issue date is the 1st of September, the served on date is the 11th of September (tomorrow?) I assume I have to send back the Acknowledgement of Service form ticking the "I intend to defend all of this claim" bit.

I have prepared a letter requesting the CCA etc for TBI, do I send that to them or their solicitor on the court papers? Also do I need to send a postal order for he CCA? I am sorry for all the questions but I really want to do this right.

The letter asks for the following:

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.

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 HFC Bank.

c. 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.

d.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).

e. 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.

f. 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.

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

h. 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.

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

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

[buffyoo7]

right i think you need more advice but from what i understand the letter you have got there is a CPR is for every bit of information they have on you but thats fine that is what you need the cca is just asking for a copy of your customer credit agreement because it has already been served with the courts you do not need to send any money for the CPR

send a copy to TBI and the solicitor recorded delivery

the letter looks ok to me but some things need to be deleted and your details put in

hope this helps buffy x

[B3rty]

Use this letter and send to the DCA or Solicitors address on the County Court form.

I assume its Northampton and you should be able to acknowledge the claim to the court online, however if its your local county court you need to acknowledge to them and if your are going to defend the select this option which gives you another 14 days from the 14 so 28 from the service date to submit your defence which goes to the court

Account In Dispute

 

Dear xxxx,

 

I acknowledge receipt of your notice of intended legal action sent by your company on xx/xx 2007 which was received on xx/xx2007.

Please be aware that any proceedings will be extremely vigorously defended and that a counterclaim will be made against ** DCA **. I am unable to respond further at this time, since you have given me inadequate information to investigate the claim. Please note that under the Overriding Objectives, you have a duty to act reasonably at all times.

 

As you are aware, under the pre-action protocols of the Civil Procedure Rules, your letter before action should have included the following information:

4.3 The claimant's letter should —

(a) give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b) enclose copies of the essential documents which the claimant relies on;

© ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

(For many claims, a normal reasonable period for a full response may be one month.)

(d) state whether court proceedings will be issued if the full response is not received within the stated period;

(e) identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

(f) state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

(g) draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

I note that your letter failed to enclose copies of the essential documents upon which you will seek to rely, failed to ask for acknowledgement of the letter, failed to ask for a written response within a reasonable period of time, and did not draw attention to the courts powers

to force all parties to comply with the practice direction.

I intend to provide you with a full written response, but as yet I have not got adequate information to investigate your claim.

To enable me to investigate this claim I require specific information regarding the account to be provided forthwith. 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.

If you fail to disclose this information, I may apply to the court under Part 18 and part 31 of the civil procedure rules.

I will be unable to respond to your claim without this information, and by failing to supply it before starting legal action you would breach the overriding objective of the Civil Procedure Rules.

 

Request for disclosure;

I request that you send me information vital to investigating your claims, including:

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.

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

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

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

c. 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 ** CREDITOR **.

d. 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.

e. 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).

f. 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.

g. 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.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

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

j. 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.

3. Any other documents you will seek to rely upon in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

Please note, I will respond to your claim in full within 14 days of your providing this information. I must advise you that if the information is not forthcoming, or if you start proceedings without furnishing this information, it will be reported to the Court that you are denying me the opportunity to settle this matter amicably.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

Yours Faithfully,

[Canaan]

Thanks B3rty.

Thats one hell of a letter I will email it to myself at work and work on it tomorow.

I live in Norfolk and the court is in London, I have read that they may move it to a local one to me if it is being disputed? Also there is no option to do anything online, everything is by snailmail.

Thanks again

 

Canaan

[B3rty]

OK ...normally these things go through Northampton which is an online system..

 

You must get this transfered to your local court and you will have the option to do this when they send the Allocation Questionnaire....but in the meantime make sure to acknowledge the claim in the time frame ...

 

Fax is best followed by a call to the court to make sure its received and get the reference

[Canaan]

Thanks for the advice!

Right I have faxed the acknowledgement of service form back to the court and rang to check they got it. I have also sent the letter below to both the solicitor and the DCA recorded mail. So what now??

 

Canaan

[42man]

keep a close eye on the timescales (you need to submit a defence within 28 days on the date of the claim).....wait and see if they respond to your request....have a good read around the forums (especially the legal successes).....I mean common sense says, how can you defend a case, with no Consumer Credit Agreement, no statements for the duration, (excessive charges), etc etc....

[Canaan]

Thanks 42man.

I have been trawling round the forums and can't find a case like mine where the court papers came before the request for CCA was sent. If anyone knows where I might find such a thread could they please point me to it I am very nervous about this whole thing so want to read as much as possible and see what sort of defence was submitted.

 

I meant to say that when I rang the court today i asked what date my defence would have to be in by and they said the 9th of October, then after that they said I would be sent an allocation questionaire then 14 days after that would be the court date. Did I understand this correctly?

[B3rty]

Its worth phoning the court again to ask when the defence has to be in just to be on the safe side

 

Pleanty of defences around to chose from but to help you really need to post the POC minus the personal stuff so we can have a look to offer specific guidance...

 

I am not an expert but can point you in the direction of a standard one or ones I have on file however there are some very knowledgable folk here who can help and its worth bumping this thread in the massive CCA thread where the experts tend to gather..

 

your previous thread....

 

The court date will be set by the judge after your allocation questionnaire is submitted...if you have not received a CCA you will request this as part of your draft order for directions in the AQ so the judge may write to them giving them a time period to produce it or have the case struck out

 

Its not likley any court date will be so soon and it will drag on

 

This is a standard defence that can be adapted for your needs

 

Defence

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
3. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a)The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt 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.

 

 

 

6.Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

7.It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8.Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

 

9.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/xx/2007 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.

 

10.To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested. All I have received in relation to my request is a letter from the claimant stating I am placing an unfair burden on the claimant by requesting the disclosure of the said documents.

 

11.It is denied, as suggested in point 10 that it is an unfair burden being placed upon the claimant with regards to my request for disclosure and the courts attention is drawn to the fact the claimant has failed to comply with CPR part 16 and Practice Direction 16 in-so- far as they have failed to attach the written agreement they are basing this action on to the particulars of claim as required by the civil procedure rules. Therefore I believe that I am entitled to ask the claimant to supply me the requested documents

 

12.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

 

 

 

13.The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

 

 

14.I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

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

 

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

 

17.Notwithstanding point 15, 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)

 

18.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

 

 

19.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

 

20.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.

 

21.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

 

22.Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

 

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

 

Just seen this which contains some great info

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[Canaan]

Pleanty of defences around to chose from but to help you really need to post the POC minus the personal stuff so we can have a look to offer specific guidance...

 

I will do that tomorrow

 

I am not an expert but can point you in the direction of a standard one or ones I have on file however there are some very knowledgable folk here who can help and its worth bumping this thread in the massive CCA thread where the experts tend to gather..

 

Sorry to be a pain but how do I do that??

Canaan

[B3rty]

Just go into the thread...make a quick post to say what you need in terms of information or opinion and post the link to your thread here but cuting and paste the link from the address bar as I have done for you below

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html

[Canaan]

Thanks B3rt.

I will do that now, I have attached the POC I received. Both the letters I sent have been delivered so no doubt I will get a reply soon:)

Thanks

Canaan

court.pdf

[B3rty]

You said this was a credit card which is a s.78 request however the POC says it was a loan which is a s.77 request so if this is correct you have sent the wrong request to them and also put the wrong detail in your defence.

 

I am not sure if this matters perhaps someone will comment?

[citizenB]

canaan, I dont know whether it is just me, but I cant read that document it is all fuzzy.

[Canaan]

B3rty said:

You said this was a credit card which is a s.78 request however the POC says it was a loan which is a s.77 request so if this is correct you have sent the wrong request to them and also put the wrong detail in your defence.

 

I am not sure if this matters perhaps someone will comment?

 

It was a credit card, a beneficial visa card???:-?

 

citizenB said:

canaan, I dont know whether it is just me, but I cant read that document it is all fuzzy.

 

Sorry CitizenB. That was the best copy I could do, the original is pale and washed out too. You might have to zoom in a bit

 

I don't know if this is any clearer? I have darkened it a bit

 

Canaan

court1.pdf

[Canaan]

Got this today...any ideas on a suitable response??

16-9-08.pdf

[citizenB]

You said this was a credit card which is a s.78 request however the POC says it was a loan which is a s.77 request so if this is correct you have sent the wrong request to them and also put the wrong detail in your defence.

 

I am not sure if this matters perhaps someone will comment?

 

It was a credit card, a beneficial visa card???:-?

 

 

I have solved the fuzzy problem Canaan, I printed a copy off and it is ok.

 

Yep, they do seem to have their knickers knotted dont they ?. In the POC, it states it is a loan agreement and in the letter you received today (you get your post early) it refers to a Credit card.

 

I am assuming the letter they refer to dated 10th September is the CPR request you sent requesting copy documents etc ?.

 

They also refer to a Notice of Assignment dated 22 November 2007 which they claim to have served to you by letter on 18th January 2008. Have you got that letter/Notice of Assignment.

 

They say the sent you a Default notice dated 15th February 2008 and a letter before action dated 23rd July 2008. Do you have copies of these.

 

Any chance you scan these in, removing of course all personal information.

 

They also say other correspondence has been ignored by you. Do you have copies of any letters that you might have sent them in response. You dont need to scan these in as yet. Perhaps just put up a time line. and a short description: for example..

 

Letter dated XX XXXX 200? TBI said if I didnt pay up yesterday, they would shoot my cat.. !!

[Canaan]

Hi CitizenB.

Yes the letter on the 10th was the CPR request.

 

They also refer to a Notice of Assignment dated 22 November 2007 which they claim to have served to you by letter on 18th January 2008. Have you got that letter/Notice of Assignment. They say the sent you a Default notice dated 15th February 2008 and a letter before action dated 23rd July 2008. Do you have copies of these.

 

I did not receive a notice of assignment nor a letter before action,

 

Canaan

Edited December 30, 2008 by Canaan

[citizenB]

If you can scan in the default notice and take out all the bits that will identify you that would be good. Hopefully they have made a mistook that we can pounce on

[Canaan]

Thanks citizenB.

 

Even though I have sent the CPR request with my surname spelled correctly the numpties have spelt it wrong again in this letter:-x

 

Canaan

Edited January 4, 2009 by Canaan

[citizenB]

Hi canaan. Ok, will check out your thread tomorrow for the default notice. Meanwhile, you might want to check out this thread, In particular the first post where there is a letter that I think suitably amended might just meet your needs for responding to TBI's reluctance to respond favourably to your CPR letter. Dont do anything with it just yet, wait until we see your default notice ok.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html#post1707671

[B3rty]

Just to add the above letter is a great response to the one received from their solicitors and it will be interesting to see their reply..

[Canaan]

duplicate post

Edited January 6, 2009 by Canaan