The dreaded court claim came today...

[Decanus]

hope you can help...

 

despite trying to deal with Lloyds for months, and them issuing me a default notice while they were in default of a cca request, they have now had the cheek to issue a court claim through Sechiari, Clark and Mitchell. When I did receive an answer it was a badly photocopied Application Form, not an Agreement.

 

Does anyone know do they normally see it through, or is this a scare tactic they back down from when you defend it?

 

so how should I go about defending this? I have drafted up CPR acknowledgement letter to them, and am going to acknowledge receipt of the claim online. Do I need my full defence details when I do this? (I'm not sure exactly what to say...)

can I claim for costs?

 

any help at all on how to proceed would be appreciated.

 

 

 

 

thanks in advance for any help

Edited March 7, 2009 by Decanus

[fedup74]

Hi decanus:) Can you post up a copy of your default notice and the agreement?

[Decanus]

Thanks for having a look...hopefully these scanned ok

 

 

 

 

I would appreciate any and all help, as (bloody typically) I am off for a week from Monday on a work trip, and am now panicking a little about the claim, what to say, whether to acknowledge it online, what defence to attempt etc....I cannot leave it until I return, because of the timing..

Edited March 6, 2009 by Decanus
incorrect info updated

[Decanus]

just to add....going through the paperwork, a response from Lloyds on June 18th states 'a copy of your application form will be sent under seperate cover'. They do not even call it an agreement. Is this important, considering the court claim mentions the agreement?

[slick132]

Moved from Legal Issues, Successes to Legal Issues.

 

[Decanus]

many thanks.....

[ScabHunter]

Hi Decanus,

 

Got your PM, and I'm looking through this now. Good job of uploading the necessary documents, that saves us all a lot of time.

 

Are you going to have internet access during the time you are away? It isn't necessary, just useful to know.

 

If you want me to, I can stay up until I have posted the letters you will need to send.

 

If you haven't already done so, you will need to acknowledge service. You don't need to submit a defence, just say that you will be defending the whole claim.

 

SH

[ScabHunter]

Right. The first letter you should send is a demand for information under Civil Procedure Rules Part 31.14. This allows you to demand a copy of any document which is mentioned in the Particulars of Claim. Here, the agreement and the default notice are mentioned specifically.

 

Send this to SC&M by Special Delivery. There is no fee required. As ever, don't sign the letter.

 

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 documents 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 default notice.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents 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 versions to include an obligation to recover and preserve such versions 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

 

xxxxxxxxxxxx

 

 

SH

[ScabHunter]

The second letter is a more comprehensive request for information. It covers the documents demanded in the CPR 31.14 request, but it is better to demand those crucially important documents, on which the entire case will rest, as a separate demand.

 

This is a CPR Part 18 letter. Send it to SC&M again by Special Delivery. Send the two letters separately, because these CPR 18 requests tend not to be complied with, or only partially complied with. It is much better to have a totally separate request for the crucial documents.

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

Dear Sir,

 

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 Faithfully,

 

XXXX (type, don't sign)

 

 

SH

[ScabHunter]

When you acknowledge service, you will give yourself another 14 days in which to file a defence, so go away and concentrate on your work trip.

 

Most of the defence can be written out now, as we are in possession of the default notice and the supposed agreement. It should not be a problem to get the right defence submitted well before the deadline.

 

SH

[Decanus]

Thanks for the help, it is very much appreciated. Sorry I didn't stay up much later yeasteday, various chores to do today, but I really appreciate the effort that you put in.

 

I have adapted and printed out the two templates you supplied, and will post those off special delivery...

 

with the online acknowledgement of service, I assume I will say that I will be contecting the whole amount of the claim. What would be a counter claim, if any? (expenses, costs?)

also, it aske me what my defence is, do I need to be very specific at this point? not entirely sure of what to say...

 

this is all great help, though....

[ScabHunter]

Is the Acknowledgment of Service different online?

 

I have only seen the PDF form which is here -

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

This form only asks for your personal contact information and whether or not you are defending the claim. Does the online version demand more than this? I can't get to see it without having a claim form and password.

 

If it does, either consider sending the postal version, or just put something like "Defendant is embarrassed because no documentary proof of alleged debt has been produced."

 

There is no need to be specific at the acknowledgment stage. You still have time to file a full defence when (if) you get a reply to your CPR demands.

 

Don't worry about a counter claim. Even if you were making one, it would not be done at the acknowledgment stage. Acknowledge service, get the CPR demands sent, and then go and concentrate on your work trip. There will be plenty of time to submit the defence when you get back.

 

You won't need to counter claim to apply for your costs.

 

When you get back from your trip, make a post to bump this thread up to the top again.

 

SH

[Decanus]

This is all new to me too!!

 

This has a screen scan of what greets you when you log in....

 

There is an Acknowledgement of Service button, but itseems to be saying go throught that if you want 28 days, not 14 (which sounds pretty to me, is there any disadvantage to this, seeing as I am away until next week from tomorrow)

 

The Response Form button seems most relevant, but expects upto a 1000 word defence....

 

let me know your thoughts...

 

http://i297.photobucket.com/albums/mm217/Decanus6/001-1.jpg?t=1228047900

[supasnooper]

Use the "Acknowledgment Of Service button".

 

and you don't wish to contest jurisdiction.

 

You won't need to enter a defence at this moment.

 

Any probs or questions on the AOS the come back here.

 

I'll keep an eye your thread until you've completed the Acknowledgment of service.

Edited November 30, 2008 by supasnooper
added more details

[Decanus]

Right, all done, and have printed out receipt.

 

Have adapted and printed out the two templates provided by yourself (thanks again!!), and will post out tomorrow from the airport. Is there anything else I need to do at this stage? or do I wait for the response?

 

I will not have regular internet access while I'm away, but may be able to check in from time to time, so please continue to add anything thats relevant, and I will post if I can.

 

I am around all day today, so any defence ideas feel free....!

[creditcardmug]

Hi, just worked out your defence must be filed by 31st Dec, as long as you dont miss that deadline your ok.

 

One more thing if your defence is more than 8000 characters you cant do it online, so would have to go by SD to the court.

 

Its best to leave it at late as poss but not too fine.

[Decanus]

I'm probably going to need help with structure and wording, but I guess my defence is going to be primarily that they have failed to provide the CCA agreement, and what they did provide was late and only an application;

 

additionally they continued to process my account, add interest and charges while in default, and passed it on to a DCA (Fredricksons), who only went away after being unable to provide what I asked for.

 

Also, they ignored correspondance, sent me an incorrect answer to an official complaint (the answer must have been to someone else, it bore no relation to mine), and failed to give me a fair chance to come to a payment agreement.

 

Is all this relevant, or do you just stick to the failiure to provide an agreement? are there any set defences of this type?

 

as an aside, are not the courts going to get swamped with all these legal claims if banks insist on going to court, considering the current climate?

[creditcardmug]

To give you an idea of a defence heres one i used

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/126560-nationwide-kpr-cca-request-3.html

 

Theres no standard defence you have to tailor it to each case.

 

Basically all your defence is doing is refuting whats in their particulars of claim.

 

SH and myself will make sure you have a defence in time, it also depends on whether you get a response to your CPR letters.

 

Yes the courts are going to get swamped, i think its already started.

[Decanus]

you guys are stars, I really appreciate all this.

 

I certainly plan on helping out people that come after me as well, by sharing our experiences and knowledge w can start to level out the playing field....

 

I can have the week away now without panicking, and will update you with any new info when I return; I shall be logging in (hopefully) so please keep the thread alive for next week.

 

Very helpful stuff so far....

[Decanus]

right, back from my trip away, and ready to take on the buggars....to recap, I acknowledged receipt of claim online, told them I was fully defending the claim, and sent off the two relevant letters by recorded delivery on December 1st; as of now, no reply or contact from Sechari..

 

should I be readying a defence now, or is it a case of waiting a little longer to see if they respond to my letters? I have until December 28th to file the defence, I believe....

[Gilbert_O'Sullivan]

Shouldn't the trading name and address of Lloyds be in bold on the default notice to be compliant?

 

What is the date of it?

 

Also, where is the second page?

[Decanus]

Hi Gilbert,

 

there was a second page, but is a generic 'what we will do if you do not correct your breach', so of no real interest

 

if Lloyds are supposed to include their full registered details on the Default, they certainly didn't, just the Collection Centre address at top right.

 

Default was issued April 1st, the court summons on November 30th.

 

I had previously been pursued by Fredricksons, on Lloyds behalf, but even they dropped pursuing me after I requested the AGREEMENT, not APPLICATION. I wonder if Sechari are seeing if they can scare me and do not plan to take it as far as court, as if the letter of the law is followed, they cannot collect on a debt without the agreement.

[Gilbert_O'Sullivan]

Hi Gilbert,

 

there was a second page, but is a generic 'what we will do if you do not correct your breach', so of no real interest

 

 

No, it is of great interest, these default notices are all computer generated which is great, esp if they are all the same with the same flaws!

 

From what I gather, a flawed default notice may be better for you than an application/agreement that may be enforced as they cannot issue another default notice and can only claim the arrears and not the full outstanding balance, or something like that.

 

I'm sure someone will be along who knows more than me, have a search about default notices.

[Decanus]

still no reply to either my Civil Procedure Rules Part 31.14 letter, or my request for further information letter, both sent on December 1st. What happens if they fail to acknowledge or respond to these? will I still need to file a defence?

 

also, just to check, how do I know if I have 14 or 28 days to file a defence. A previous post indicates I have until the end of the month, but I have not been informed officially about when it needs to be filed.

 

As all this falls over Xmas, I am getting a little antsy, so am thinking about sorting a defence now...too early? should I wait until 14 days have elapsed, as per the length of time given in the two letters...

 

all help and info appreciated, as always....

[Decanus]

bit quiet today, so just bumping this back up...