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

[citizenB]

Grrr, it actually looks ok Canaan. However, there is still the question of the missing CCA.

 

Do you know if the amount on the Default notice is correct ?. Are there any penalty charges included that you are aware of?. That could make it invalid.

 

I think what you need to do now is put in your defence so that you get that in on time and also send the letter I linked you to earlier, you will need to amend it so you are asking for the documents specific to your situation. I will have a look at it again in a minute.

 

I will look round and try and find a defence that would be suitable for your needs.

 

At this stage, I think one of the "less is more" defences would be suitable. BRB.

[citizenB]

Hi Canaan, I have pm'd you the amended letter as per post 28. Just yell, if you have any queries:D

[Canaan]

Hi citizenB.

By penalty charges do you mean charges for late payments etc? If so there are some but they are pre 2002. The letter you recomend has had a lot of debate about it on it's thread, is it ok to use in it's original form? with the relevant pieces altered for myself of course. I have to get my defence in by the 9th and am getting jittery now

[citizenB]

Hi citizenB.

By penalty charges do you mean charges for late payments etc? If so there are some but they are pre 2002. The letter you recomend has had a lot of debate about it on it's thread, is it ok to use in it's original form? with the relevant pieces altered for myself of course. I have to get my defence in by the 9th and am getting jittery now

 

 

We must have posted at the same time. See my post above yours. I have amended the letter to your requirements and pm'd you a copy. OK> DONT PANIC> I am just looking for defence for you. If you read the letter you will see by sending that you are delaying your PROPER defence and you will just be acknowledging the claim form. ok.

[surfaceagentx20]

I'm not so sure this is an effective notice. Where in the notice does it record the name and address of the creditor? Is it there but has been blanked out?

 

Further, and arguably, saying 'The creditor will issue court proceedings for the recovery of the whole balance of the account' is insufficient, since only upon non-compliance will the whole balance become payable (as opposed to the 'unpaid balance' referred to in the DN), and to be able to sue for the whole balance requires at minimum a demand for payment of the whole balance. This is why the regulations require the creditor to say if default is made he intends to 'demand earlier payment'.

 

As I understand things a demand was not received prior to the commencement of proceedings.

 

x20

[citizenB]

Thanks for looking in X20, according to the claim form the Default was served in February. However, only the OP can answer the question was it received prior to the issuing of the claim.

 

Having shamelessly reproduced, albeit with amendments suitable for the OP, your letter requesting information. Could you please have a look at the minimal defence. This time, I have plagairised alouyish. Thank you.

 

**********************************

 

Embarrassed Defence for Canaan

 

1. The particulars of claim discloses no cause of action and are self evidently an abuse of 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).

 

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

[Canaan]

I have amended the letter to your requirements and pm'd you a copy.

OK> DONT PANIC> I am just looking for defence for you. If you read the letter you will see by sending that you are delaying your PROPER defence and you will just be acknowledging the claim form. ok.

Thanks citizenB

[Canaan]

I'm not so sure this is an effective notice. Where in the notice does it record the name and address of the creditor? Is it there but has been blanked out?

 

The name and address of the debt collection company has been blanked out

 

Further, and arguably, saying 'The creditor will issue court proceedings for the recovery of the whole balance of the account' is insufficient, since only upon non-compliance will the whole balance become payable (as opposed to the 'unpaid balance' referred to in the DN), and to be able to sue for the whole balance requires at minimum a demand for payment of the whole balance. This is why the regulations require the creditor to say if default is made he intends to 'demand earlier payment'.

As I understand things a demand was not received prior to the commencement of proceedings.

x20

 

Right I have done a bit of searching through my paperwork and found another letter:oops: It was hidden amongst the paperwork for another debt collection company who were trying to get me to pay for a debt that had already been paid off, this letter came at the same time and got stuffed in with that paperwork accidentally I was soooo fuming at the time and obviously didnt look at it closely enough...now I can say that I am certain that this is all the letters I have received!! So any comments gratefully received.

LETTER23-7-08.pdf

[Canaan]

I assume that I should get that letter off first thing tomorrow? Then give them the 7 days to reply....then put in my defence????

Thanks in advance

 

Canaan

[citizenB]

Yes that is correct canaan. Send it either Recorded or Special Delivery, keep the receipt.

[Canaan]

surfaceagentx20 said:

As I understand things a demand was not received prior to the commencement of proceedings.

x20

 

Hi x20

The attached letter (which I had accidentally filed with another DCA paperwork and only found today) on the 23rd of July 2008 and the court papers on the 10th of September 2008.

Thanks

Canaan

LETTER23-7-08.pdf

 

What exactly is a charge on a house? and is it usual for them to threaten this?

Thanks

Canaan

 

Canaan said:

What exactly is a charge on a house? and is it usual for them to threaten this?

Thanks

Canaan

 

Never mind I did a search and found out what it is Over my dead body!!!

 

The story so far...

I received court papers clearly stating that I was being taken to court to recover the balance of a personal loan, I have never had a personal loan with the OC ( I had a credit card not a loan), could this be used in a defence?

The first CPR letter I sent to the DCA and their solicitor was replied to but my request ignored.

The second CPR letter is being posted today.

I never received anything from the OC telling me that they were selling the debt to TBI, the first communication I received from TBI was the default notice, and I have never had any messages left on my answerphone from TBI. I have had several messages left where the caller does not identify themselves or their company just telling me to call a number.

Now I need to work on a defence and would be grateful for any help in this, the embarassed defence is short and sweet, does it just mean that I can not defend without the paperwork therefore thats all I can say???:-?

 

Thanks

Canan

Edited January 4, 2009 by Canaan

[reallymadwoman]

I believe that issuing proceedings for a loan when you've never had a loan with the company means that your defence will be simply 'I have never had a loan with XXXX'. All this will actually mean in practice is that they will have to amend their particulars of claim, which will cost them an application fee, but it will delay things and give you a better chance to make sure all their paperwork is in order. It will of course also make them look ridiculous, which is a definite bonus.

[citizenB]

What exactly is a charge on a house? and is it usual for them to threaten this?

Thanks

Canaan

 

Never mind I did a search and found out what it is Over my dead body!!!

 

That's the spirit. Unfortunately, yes. These companies do make this threat more often than not. If your read round the forums you will see plenty of people who have seen the threat off.

 

Your creditor has instigated court action on the basis of an agreement. They have not produced that agreement. Until they do, you are unable to say whether this company has the right to collect/enforce.

 

So, they have ignored your first request under the CPR. With X20's excellent letter you have now made a further stab at getting this information provided. Until you receive it you are unable to put in a full defence because you dont know if you are actually liable for this.

 

It does seem strange they have put on the claim form that it is for a loan when in fact it is a credit card debt and yes, I would say that you would mention this.

 

What RMW has said in the post previous seems an excellent response in fact.

 

When do you have to have your defence in by ?

[Canaan]

I have to have the defence in by the 9th of October

[surfaceagentx20]

You have plenty of time to put in your defence so you do not need to take any step imminently. What you do next can be chewed over and there are things which need to be chewed because although I have knocked out a form a defence (below), it is based solely upon the point that a loan agreement was not entered into.

I flagged up what may have been shortcomings in the DN but having seen the PoC, the amount demanded in the DN is the sum demanded in the letter before action is the sum demanded in the writ. There is no real mileage in challenging the DN. Further, As RMW said, sooner or later the nature of the agreement is going to be corrected. The defence is flimsy in the extreme therefore. It will not survive an amendment.

So do you run with a defence which at the end of the day won’t get you very far? It’s purpose in truth is simply to buy you time. Is that what you need over anything else in this case? More time?

You might think it in your interests to issue an offer to settle at something less than £3,000.00. If you have a lump sum available the creditor may be so interested in that lump sum to be willing to give a valuable discount in return for a one off payment to settle. Doing this avoids the litigation, settles it and doesn’t result in a CCJ

Alternatively you may prefer to admit the claim and take advantage of the court’s powers to stay enforcement on the basis you make monthly instalments. That gets you more time too, though doing this does lead to a CCJ.

Any way here’s that crappy defence:

IN THE XXXXXXXXXX COUNTY COURT

Case No:

BETWEEN:

xxxxxx

Claimant

and

 

canaan

Defendant

DEFENCE

 

1 The Defendant denies having entered into a loan agreement with HFC Bank plc (the bank) or otherwise receiving an advance of money with an obligation to repay it to the bank. If the loan agreement was regulated under the Consumer Credit Act 1974 the same will have been made in writing. If the Claimant intends to rely on a written agreement in this claim, no such agreement together with any general conditions was attached to or served with the Particulars of Claim, contrary to the provisions of CPR PD 16 paragraph 7.3.

2 Paragraph 2 of the Particulars of Claim is denied.

3 No admissions are made as to paragraph 3 of the Particulars of Claim.

4 The Claimant’s entitlement to payment of the sum of £3,028.26 and to interest is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

x20

[Canaan]

Thanks x20.

So if this defence would only buy me time and serve no other purpose there is little point in going on with it I think. I will have to use the lack of signed CCA defence instead do you think?? I do not have any lump sum to pay, and a monthly amount would be minimal.

Thanks

Canaan

[Canaan]

A quick update and question

I sent a second CCA letter to the solicitor on the 18th, it has been delivered according to the royal mail. I have not had a reply yet, should I shoot yet another letter off to them? And if so has anyone got any ideas of what to put in it this time:confused:

My defence has to be in by the 9th of October.

 

Thanks

Canaan

[citizenB]

Hi Canaan, the letter you sent off was the one adapted from x20 wasnt it ?. I dont think you need to send any more letters. That one was fairly self explanatory and the solicitor is well aware of what they should be sending you.

 

You dont need to get your defence in until the 9th so you still have plenty of time in hand. You should give the solicitor at least until Friday to reply to you. It is probably a good idea to leave the defence until a bit nearer the time anyway, that way you dont give too much away to the opposition

[Canaan]

Thanks citizenB.

Yes the letter was an adapted x20 one. Ok I will wait till Friday to hear from the solicitor, that will leave me 7 working days to get the defence ready

[citizenB]

Good morning canaan,

 

I am just posting the letter you sent here so people know where you are at. I believe X20 posted a defence for you in post 48. Whether this will need to be amended before you submit I dont know. You did send your acknowledgement of service back to the court didnt you ?

 

****************************************

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1: the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2: the assignment

 

3: the default notice

 

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[Canaan]

Hi citizenB

I did send back the acknowledgement straight away. The defence that x20 posted in post #48 was if we were using the fact that they have put personal loan on the court paperwork instead of credit card as it should be, but as x20 said all this would do is buy time, it is not a proper defence. So i need to go for the no CCA defence (but would love to be able to get in the fact that they cocked up the court papers too :grin:) but can live with it if we can't. Also I have read about putting in a defence but asking for the ability to change it if the CCA, or an excuse for a proper CCA, was produced at the last minute.

 

Thanks Canaan

[citizenB]

Yes, you can ask the court for permission to amend your defence should the claimant provide the documents you are requesting.

 

I think you need to speak to X20 regarding your defence as it stands at the moment. X20 also pointed out an error in your default notice that could be used in your defence #35. As already said, wait until Friday, then if X20 hasnt looked in, it might be an idea to pm and ask if he will take a look for you.

[Canaan]

duplicate post

Edited January 6, 2009 by Canaan

[Canaan]

Your mail box is full!!

[surfaceagentx20]

Canaan, sorry it fills up almost faster than I can empty it! Try again now.

 

x20