Lowell/HFO claimform - old barclaycard debt **WON***

[Pank]

Right I am a bit confused now how do I know if my defence complied with

CPR 16.5? Do you want to see it?

 

I have received a copy of a letter (notice of asignment) from Barclaycard but it is so obvoius that Thurbull or HFO have just printed it off them selves.

one was undated but told me that with effect from 30-10-07, barclaycard had assigned my account to HFO Capital Limited with one amount on it.

 

The second copy was also undated but different lay out, still on Barclaycard letterheard same date 30-10-07 assigned to HFO Capital but this time a different amount.

 

The default notice served b HFO whic is incorrect date of asignment is 30/10/07 as well.

The Terms and conditions are uneligable. I ca't read them they are unsigned and undated.

 

What do I do now? Do I need to amend my deffence? Confused.

 

What do I need to do

[mike1962]

You can get CPR 16.5 on the Internet or at your public library.

 

(1) You have to set out which of the claimant's allegations you admit.

 

(2) You have to set out which of the claimant's allegations you deny.

 

(3) You have to set out which of the claimant's allegations you neither admit nor deny, but which you require the claimant to prove.

 

Remember, admissions and denials are only for facts which, if they existed, would be within your direct knowledge, as opposed to hearsay. Especially theirs.

 

If the assignment date they put in their statement of case is 12 March 2009, put them to proof on this. Then watch them squirm!

[Pank]

I have complied with the 16.35, I checked this on line.

I have aleady filed my defence. The assignment date they but in their statement of case is 12 March. Is there anyway I can make them or the court aware of this now? Or do I have to wait until we go to court?

[Pank]

Pank, exactly the same happened to me. HFO Services Ltd issued proceedings on 13 March 2009 through the Northampton County Court Bulk Centre, giving 12 March 2009 as the account purchase date. You've almost certainly got a Notice of Assignment and Default Notice stating another purchase date. What you need to do is to get an N244 and apply for the Claim to be struck out under Civil Procedure Rule 3.4(2)(a) [no real prospects of success] or Rule 3.4(2)(b)[abuse of the process of the court]. Reasons: (1) original lender not identified; (2) timeline too short for their story to be credible; (3) assignment date different from date given in pre-litigation exchanges.

 

Very probably the whole batch of claims issued on 13 March 2009 have the same egregious purchase date error.

 

Which means that HFO Services Ltd are facing the biggest disaster since the Death Star met the planet Aleeraan.

 

Right, How do I apply for a N244, I have got the form from hmc court service, is that correct?

I suppose I send it to the Northampton bulk centre as all the correspondence I have had so far has been from them.

Is That what you did?

Does that mean I now have to amend my defence? I have already requested all the documents under CPR31.14, I have also received them, this was before I filed for my defence. Should I make the request again as they might have changed their mind as to what documents they are using?

 

My case have not been asigned a local court yet, should I wait?

Edited April 21, 2009 by Pank

[I've got no money]

I really would like to see the defence - if you want to pm me that's fine - but if I suggest any amendments - I'll post them so that other people can check that I'm right....

[I've got no money]

Right, How do I apply for a N244, I have got the form from hmc court service, is that correct?

I suppose I send it to the Northampton bulk centre as all the correspondence I have had so far has been from them.

Is That what you did?

Does that mean I now have to amend my defence? I have already requested all the documents under CPR31.14, I have also received them, this was before I filed for my defence. Should I make the request again as they might have changed their mind as to what documents they are using?

 

My case have not been asigned a local court yet, should I wait?

 

You can get an N244 from the court service website - you can fill it in online BUT you have to print it out with and send a hard copy in triplicate to the court with either the fee OR a form ex160 a - which is an application to apply for a reduction or total remission of the fee - its' on the court service website.

 

I really would not advise you gto apply to strike out on the basis suggested by Mike 1962. The application has absolutely, in my view, no prospect of success.

 

If you want to apply to strike out do that on the basis that there no cause of action. As I understand it the claimant is HFO Services Ltd who have pleaded that the debt was assigned to HFO Capital and they are acting as agents.

 

There is a thing called privity of contract - what that means is that the only people who can sue on a contract are parties to it. HFO Capital has become a party because the contract has been assigned to it. HFO Services is not a party and cannot therefore sue. On the face of the pleadings the contract has not been assigned to HFO SErvices and therefore you are, technically, entitled to seek a strike out.

 

HOWEVER if you apply for a strike out HFO SErvices will amend the claim to say that the agreement has been assigned to them by HFO Capital.

 

Whatever Mike thinks that is a permissible amendment

 

The reality is that the claim form has got to be sorted out - you can either do it by a strike out application or you serve, which is my preferred option, a request for further particulars of the claim and you ask for them to tell you on what basis they bring the claim. Your defence needs amending to deal with the fact that as matters currently stand there is no cause of action. When I see how you've pleaded the defence I'll amend it for you.

 

So at this stage my advice is not worry about a strike out and just do a request for further particulars. We also need to amend the defence.

[I've got no money]

Right I am a bit confused now how do I know if my defence complied with

CPR 16.5? Do you want to see it?

 

I have received a copy of a letter (notice of asignment) from Barclaycard but it is so obvoius that Thurbull or HFO have just printed it off them selves.

one was undated but told me that with effect from 30-10-07, barclaycard had assigned my account to HFO Capital Limited with one amount on it.

 

The second copy was also undated but different lay out, still on Barclaycard letterheard same date 30-10-07 assigned to HFO Capital but this time a different amount.

 

The default notice served b HFO whic is incorrect date of asignment is 30/10/07 as well.

The Terms and conditions are uneligable. I ca't read them they are unsigned and undated.

 

What do I do now? Do I need to amend my deffence? Confused.

 

What do I need to do

 

Don't worry about the CPR - we'll guide you through you need to do.

 

The NoA - arguably does not need to be from the Original creditor it does however need to be in writing - until you see the actual assignment you don't know if its' valid or not

 

When I've seen your defence I'll knock up some amendments on the basis of what we've got.

[I've got no money]

Remember, you must file a fully particularised and pleaded defence that complies with CPR 16.5.

 

They have to prove four things.

 

The name of the original lender and the identity of the account. As soon as they do that you can admit those two.

 

The assignment date. This is where you state that you neither admit nor deny, but require the claimant to prove. If the assignment date on the pleadings doesn't match the date on the notice, you've got them.

 

The next thing they have to prove is the terms and conditions of the original lender. Put them to proof on this one as well if they haven't produced the T&Cs. If they produce them, and the doc is satisfactory after careful examination, you can admit. But as soon as they see they have to prove the assignment, they probably won't.

 

This is partially correct

 

the process they have to go through:-

1. Prove an agreement, including terms and conditions

2. For CCA Enforceability prove its' in writing and contains the prescribed terms

3. If there is an enforceable agreement prove that all the sums claimed are owing

4. Prove an Assignment(s) - you are entiltled to see any assignments

5. Prove that a Notice of Assignment was served AND that the Notice was legally effective

 

Until you get proper disclosure you should not admit anything.

[broken arrow]

From persomal experience I would just go for further particulars.I tried to get my case struck out and ended up losing.

[I've got no money]

Disclosure - this is actually one of the most important bits of the whole process.

 

You said that you'd done a 31.14 request - can I ask if everythiing you asked for was supplied...

 

Did you ask for the Assignments - if you used the CAG standard letter you will have done. If you haven't asked for the assignments you need to do a letter no and ask for them.

 

What I suggest is that you do a letter to the other side you tell them that of the docs they've disclosed some are illegible and that does not equate with proper disclosure. You also tell them that they ahve not disclosed (and list whatever is missing). You tell them that they have 7 days to make full disclosure of legible copies of everything on your CPR 31.14 or you will apply for an Order that they do.

[I've got no money]

So you need two letters - send them both by recorded delivery:-

1. Further Information of the claim - asking them what basis they've brought the claim on

2. Chase up a proper CPR 31.14 disclosure

[I've got no money]

Have a look at

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191754-arrow-global-ignm.html

 

I've posted an amended defence - admittedly it's a different claimant but I've had limited disclosure of amongst other things an agreement which doesn't comply with the Consumer Credit Act - just like yours

 

The other thing, if you can face wading through it, is my skeleton argument - which outlines basically what they need to prove and also talks about assignments

 

Hope you find that helpful

[Pank]

Hello,

 

I have PM'd my defence and I am happy to have it posted on here when you have amended it to how you see fit.

 

1. Where can I find a letter that will help me to get further information of the claim, I am a novice at this and have no idea what I am doing!

 

2. Same as above where do I start to Chase up a proper CPR 31.14 disclosure?

 

Sorry for beeing feeble.

 

Many Thanks

[I've got no money]

You need to re-number my pleadings from paragraph 2 onwards - I've just put a new paragraph in to plead the bit about the cause of action

 

XXXXXX COUNTY COURT CLAIM NO:

On Transfer from the

NORTHAMPTON COUNTY COURT

 

BETWEEN

 

 

 

XXXXX

 

 

 

CLAIMANT

 

 

 

And

 

 

 

 

IGNM

 

 

 

DEFENDANT

 

 

 

 

 

 

Amended DEFENCE pursuant to Order dated

 

 

 

 

] The Particulars of claim do not disclose a cause of action in that the Claimant HFO Services Limited, a company registered in the United Kingdom pleads that an alleged agreement between the Defendant and a third party was assigned to HFO Capital Limited, a company registered in the Cayman Islands. It is upon that assignment that the claimant pleads its case. If, which is not admitted, the alleged agreement was assigned as pleaded it is averred that, in consequence of the doctrine of privity of contract that any proceedings should be brought by HFO Capital Limited. It is averred that the Claimant does not have standing to bring this claim.

 

The Defendant admits that he signed a document provided by MBNA Europe Bank Limited. It is Not admitted that the Defendant signed an agreement with MBNA Europe Bank Limited. The Precise terms and date of any such alleged agreement are not admitted. The Claimant is put to strict proof as to the date and terms of such agreement.

 

2. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974. It is denied that the Agreement is enforceable within the terms of the Act in that the Defendant avers that the aforesaid alleged agreement does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limit. It is further averred that the alleged agreement is defective in that it is not executed by or upon behalf of MBNA Europe Bank Limited.

 

3. It is not admitted that the aforesaid alleged agreement was lawfully assigned to the Claimant. The Claimant is put to strict proof that such a Lawful Assignment took place.

 

4. If, which is not admitted, a lawful assignment to the Claimant did occur it is denied that the notice required by the Law of Property Act was served upon the Defendant. It is averred that the notice upon which the Claimant relies was defective in that the sums referred to by the said notice as being owing under the alleged agreement were inaccurate thereby rendering the whole notice a invalid.

 

5. Further and in the alternative if, which is not admitted, an enforceable agreement is in existence it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

6. The Defendant is not in possession of a Default Notice. It is not admitted that the Defendant was served with a Default Notice pursuant to the Consumer Credit Act 1974. The Claimant is put to strict proof as to the service and content of any Default Notice

 

7. Further it is denied that both the alleged contractual interest and the alleged contractual account charges which have been claimed are lawfully owing in that it is averred that not only is there no contractual basis for the sums claimed but also that the sums claimed are in any event unfair and in breach of the general law.

 

8. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

 

Counterclaim

 

9. The Defendant seeks a declaration from the Court that the aforesaid agreement is unenforceable in that it does not contain the statutory particulars and is not properly executed.

 

 

Statement of Truth

I believe that the facts stated in this amended defence are true.

I am the Defendant.

 

 

Signed

 

Amended this day of 2009

County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook.

This comprehensive and very accessible guide will take you through the process of suing or defending a claim.

This guide will help you take control of your litigation and make you more confident about doing it yourself.

Edited April 22, 2009 by I've got no money

[I've got no money]

The CPR 31.14 letter is on

 

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

 

I'm not sure where the Request for further particulars is - I'll try and find it - if not I'll do a suggested one and post it for you but it won't be till tomorrow

 

In terms of the amended defence - you need permission to amend - you need to check my draft to make sure that it covers all of the points relevant to your case and to amend it to make sure that everything that needs to be included has been. You then need to do another letter to their Sols - enclose the amended defence and ask if they will agree to amendment

[Pank]

Thank you very much. Do I have to ask the solicitors permission before I sent the amendment to the court?

[I've got no money]

Yes - ask them for permission, ask for an urgent response in the next seven days:-

 

1. If you don't get a reply in 7 days - do a chasing letter enclose a copy of your original letter. Tell them if Permission is not granted within a further 7 days that you will make an application to the court for an order for permission and for an order for costs.

 

2. If they reply to your first letter and refuse permission do another letter telling them that if they don't give permission within 7 days that you will apply to the court for an Order for Permission and costs.

 

When you get the replies (or not as the case may be...) let us know and I'll tell you what you need to do next

[I've got no money]

Sorry - I should have explained - Yes you do.

 

Basically the rule is that you can only amend if the other side consent in writing OR you have permission of the court.

 

So - as it don't cost anything you always start off by asking the other side for their consent.

 

If you end up having to apply to the court - you do so on an N244 - there is a fee (unless you qualify for exemption) - but if you have asked the other side for permission and they've refused/not replied then you should be able to get the fee back. In this sort of situation I have never ever known a court refuse permission

[I've got no money]

The other thing about these Solicitors you should always send your correspondence by a trackable method - either by fax (and keep the transaction report) or recorded/SD.

 

I'd also send separate letters for the Part 18 request and the request to amend

 

Don't forget that you also need to change my amended defence to meet your case - so you need to take out MBNA and put in whoever the OC was

[Pank]

Yes I have amended it all so don't worry. I have sent all letters so far by Special delivery or by fax so no worries there.

 

I will fax the defence over now together with a covering letter. Thanks again for all your time, I am sure you would rather be down Ecclesall Road for a pint!

[I've got no money]

Yes I have amended it all so don't worry. I have sent all letters so far by Special delivery or by fax so no worries there.

 

I will fax the defence over now together with a covering letter. Thanks again for all your time, I am sure you would rather be down Ecclesall Road for a pint!

 

That's excellent - fax of course is much cheaper than SD and is as effective. SD costs a fortune

 

If you ever need to serve anything on the other side you can send it by fax and then just put the hard copy in the normal post - saves a fortune. Unfortunately you can't usually do that with the court

 

So you know Sheffield - I live the other side of the city near Crystal Peaks

[sillygirl1]

NO - from this point forward all correspondence should be copied to them and the court, including any correspondence from them - DO NOT TRUST THEM AT ALL - it is best to be safe than sorry.

 

ALSO if they ask for an 'out of court' settlement ask if the judge can see the settlement as it has been known for some parties to back out afterwards and cause further problems.

[Stressed150]

I love this thread..... subbing.... an good luck to you Pank x

[I've got no money]

NO - from this point forward all correspondence should be copied to them and the court, including any correspondence from them - DO NOT TRUST THEM AT ALL - it is best to be safe than sorry.

 

ALSO if they ask for an 'out of court' settlement ask if the judge can see the settlement as it has been known for some parties to back out afterwards and cause further problems.

 

I can understand what sillygirl means - you really cannot trust these people HOWEVER I would not, at this stage copy the court in on your correspondence. Apart from increasing the size of the court file and annoying the court staff it won't achieve anything.

 

If you are forced to submit an application to the Court you attach copies of all relevant correspondence and proofs of delivery to your application. That correspondence would include letters written by you and also relevant letters from the other side

 

SOMETHING I've just remembered from here on in - keep copies of everything you send, together with proof of delivery (fax transaction reports etc) AND also keep both letters AND the envelopes they come in that you receive from the other side

 

Settlement - if it comes to a settlement then you do it by consent order - the Judge doesn't see it and there is no hearing but what you get is an enforceable court order.

[DonkeyB]

I can't recommend fax as a verifiable means of delivery - I'd stick to registered or recorded post. It's too easy for the oppo to say it didn't come through, as fax technology varies so much these days with memory storage etc.