Court Claim Received

[atwozee]

Here we go then – I received a court claim recently via Northampton Bulk Centre. I knew one would drop through the letter box eventually.

Having read so many threads on the forum I feel that I am in a much better position to respond to this claim. Without this forum I think I would have gone into panic mode but I have no intention of doing that now!

 

The only problem is that this claim is probably the one that I am least able to defend against and for the most amount of money (well over £5k so won’t be suitable for small claims) – however, I’m not just going to rollover without a fight. So I’m going to do the following –

 

• Acknowledge service online
  
• Inform the claimant’s solicitor that the creditor has not complied fully with my s78 request.
  
• Write to the claimant’s solicitor requesting information in accordance with cpr 31 including an inspection of the original written agreement referred to in the PoC
  
• Request a copy of all statements to quantify the amount claimed and enable me to claim back any penalty charges included in the claim and if they don’t comply then I will request the court make an order for such information under cpr part 18.
  

At the moment I am undecided in my defence but there are a few things to throw at them – this claim is on behalf of the original creditor so there’s not much to go at - as things develop I will update the thread and post up the relevant documents. First of all I want to see how they respond to my above requests and more importantly whether an original copy of my agreement (which is an application form BTW) exists - which I doubt very much.

 

My defence needs to be submitted first week of March so I have a little bit of time yet but if I need any help then I will ask for it!

 

I think there are a few penalty charges on the account and that’s why I need the statements – am I correct in thinking that if I dispute the amount of debt because of penalty charges, and they decide to reduce the amount accordingly they will be able to amend the amount claimed as opposed to having to submit a new claim?

[42man]

Yes they will Atwoz, or the judge will adjust accordingly....I think the original document argument is excellent (along with the others) and the CPR31 is probably the best way to go at this stage....

[palomino]

am I correct in thinking that if I dispute the amount of debt because of penalty charges, and they decide to reduce the amount accordingly they will be able to amend the amount claimed as opposed to having to submit a new claim?

 

I seem to recall this happened to a Cagger a few months back. The total claim was reduced by the disputed amount and judgment was awarded by default for the remainder. The first the defendant knew of this was when the judgment dropped on the doormat.

[atwozee]

Okay – thanks.

I will be disputing the agreement anyway (and the default notice so they won’t get judgement by default) because the application form (which was sent after a s78 request) was for a different card with regards to the current claim. They haven’t put the account number in the PoC (cunningly) but it does appear in the reference number on the Acknowledgement of Service page.

The statements should also support the fact that there have been 2 accounts which is another reason for asking for them. The PoC also refers to certain clauses in the agreement that aren’t actually there – so I think there’s enough to put in the defence to dispute the claim at this stage.

Although I think I’ve learned quite a lot in a relatively short time frame I don’t want to make any mistakes so I will post up the PoC and my defence – but I did want to get some kind of response from them initially.

[42man]

Have they added 2 balances together in the one claim ?

[42man]

If they have then post #18 in here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/175176-help-claim-form.html#post1892590

[atwozee]

Have they added 2 balances together in the one claim ?

 

Sort of – they issued an original card number ABC and after a couple of years they issued a new card number XYZ (new limit, interest rate etc…) and transferred the balance over from one to the other.

 

They might argue that they can do this but my argument is that they can’t because they closed one account (agreement) and opened another account without securing a written agreement to do so and in accordance with the CCA 1974 – I don’t think this has ever been argued in court up to now.

 

My defence will admit to making the original application for a credit card but not the later one and that they cannot rely on the earlier application for this claim - or words to that affect.

 

I’ve got a bit of work to do but I’m confident I can put up an argument – well we’ll find out won’t we!

Edited January 19, 2009 by atwozee

[atwozee]

Oh dear – the claimants solicitor doesn’t like me asking for all this information and wants to know why I am now disputing the account/agreement – erm says I – perhaps because you’ve started a court claim against me after ignoring all previous correspondence and possibly the fact is the agreement doesn’t comply with the CCA 1974 and won’t be enforceable in court.

 

I know I shouldn’t have spoken to them on the phone but I wanted to inform them that I was sending a request for more info and would like to copy the letter by email – they don’t use email – unbelievable that they don’t seem capable of communicating in this way.

 

I doubt that they will comply with my request so no doubt a holding defence of sorts will be in order.

 

Here’s a copy of the letter I sent to them:

 

Dear Sir/Madam

Re: Claimant v Defendant Claim Number xxxxxxxxxxx

 

I received the Claim Form in this case issued by you out of the County Court Bulk Centre, Northampton. I confirm having returned my Acknowledgement of Service form to the court indicating my intention to contest all of the proceedings.

 

You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 paragraph 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

 

I also refer to my previous letter dated xx/xx/xxxx where I informed you that the claimant had not complied with my request for information in accordance with section 78 of the Consumer Credit Act 1974 and that remains to be the case. Furthermore, you are advised that your client’s response to my s78 request resulted in them sending an illegible copy of an application form for account number abc123 and not a copy of a properly executed agreement, regulated under the act, for account number xyz456 and, although this account number is not referred to in the particulars of claim, I believe the latter account forms the basis upon which your client’s claim is based.

 

Nevertheless, you are reminded of your obligation to provide me with a legible copy of the agreement referred to in the Particulars of Claim and your client’s obligation to comply with my section 78 request for account number xyz456.

 

Further, you are advised that if your client intends to rely on the same document as has already been supplied i.e. an application form for account abc123, then the above claim is entirely without merit as this document in no way represents an executed agreement in accordance with the Consumer Credit Act 1974 for account number xyz456 and would prove to be unenforceable by the court with regards to this claim.

 

 

DISCLOSURE AND INSPECTION OF DOCUMENTS:

Because you have decided not to acknowledge the points made in my previous letter, and instead proceed to making the above claim, I now request, in accordance with CPR 31.3(1), the inspection of the following document which has been disclosed in the Particulars of Claim:

 

1. The written agreement giving rise to the obligation to the Claimant for the credit advanced.

 

In addition, and in accordance with CPR 31.15©, I request a copy of the document referred to in [1] and a copy of the default notice referred to in the particulars of claim, the service of which is claimed to be in compliance with Section (87) of the Consumer Credit Act 1974 and was a condition precedent to the above claim. A copy of the agreement referred to in [1] will not be required if you intend to comply with CPR PD 16 paragraph 7.3 or your client intends to comply with their obligation under s78 of the Consumer Credit Act 1974.

 

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.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31 request.

 

 

 

REQUEST FOR FURTHER INFORMATION:

At present I am unable to ascertain how the claim for the amount of £xxxx.xx has been arrived at and if the amount is an accurate representation of any debt allegedly owed to your client. I therefore request, within the next 14 days, a copy of a complete set of statements that cover the term of the agreement, from its inception until its termination, referred to in the particulars of claim.

 

Failure to supply these statements will put me at a disadvantage regarding any defence or counter claim that I might wish to enter regarding part of or your entire claim. If you are unwilling to supply this information I will ask that the court orders you to do so in accordance with CPR part 18 and request that my defence be amended upon the production of such information.

 

If you require more time in which to comply with any of the requests made in this letter you must tell me in writing. You must tell me before the time for compliance with any 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.

 

If you are unable to comply with that part of my request concerned with CPR 31 and believe that you will never be able to comply with this request you must tell me in writing within the next 7 days.

 

Please note that if you should fail to comply with any part of this request or fail to request more time, 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.

 

Yours faithfully

atwozee

 

I think that gives them a bit of a clue as to my intentions – let’s see where we go from here – comments will be much appreciated

[42man]

They just don't like the fact that you seem to be strangely well informed of the law and they had expected an easy ride and they are feeling a little scared now and might have to discontinue, they are also hoping you won't go for a wasted costs order too. !!

[creditcardmug]

Subbing, fascinating so far:D

[underdog13]

Subbing with especial interest; have a feeling I'll be following you down this route sometime soon.

 

Best of luck, Atwozee:)

[popeye1]

Subbing,interesting

[citizenB]

tagging along:D

[atwozee]

FYI - Submitted AQ with special directions.

 

This one could go all the way but I've got my fighting pants on!

[citizenB]

FYI - Submitted AQ with special directions.

 

This one could go all the way but I've got my fighting pants on!

 

 

 

I have subscribed to all of your threads, very informative.

[atwozee]

Got me hands full at the mo lol.

Claims are like buses aren’t they – you wait for ages and then 3 come at once.

I had another one land from CL Finance – I’m seriously thinking about counterclaiming on this one for breaches of the Data Protection Act – but like most people I’m happy just to get rid of the bloodsuckers.

[citizenB]

Yes, I noticed you had more than one on the go. You seem to be coping pretty well

[underdog13]

Fighting pants - are they made of chain mail? Or would they be combat trousers? Whichever, I hope they are VERY effective for you, Atwozee:)

[f1owers]

Subbing with interest

[citizenB]

Okay – thanks.

 

I will be disputing the agreement anyway (and the default notice so they won’t get judgement by default) because the application form (which was sent after a s78 request) was for a different card with regards to the current claim. They haven’t put the account number in the PoC (cunningly) but it does appear in the reference number on the Acknowledgement of Service page.

 

The statements should also support the fact that there have been 2 accounts which is another reason for asking for them. The PoC also refers to certain clauses in the agreement that aren’t actually there – so I think there’s enough to put in the defence to dispute the claim at this stage.

 

 

I have much the same problems with my claim form. Although the Default notice appears to be ok the account number and card style doesnt match the agreement/application form. No account number mentioned on the claim form although they mention the card style as per the DN but not the agreement/application form.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/200331-me-them-claim-issued.html

[atwozee]

This case is stayed at the moment – waiting for LTSB to decide whether they want to take it further.