Defence required for Claim form - Barclaycard / CL Finance / Howard Cohen

[sev67]

Hi

 

Looking for help to complete my Defence on moneyclaim for the following please.

 

1. Received attached letter 7/11/08 from Lewis Debt Recovery acting for CL Finance Ltd saying that debt with Barclaycard has been assigned to CL Finance and Notice of Assignment shown on same letter in small grey box.

2. Received attached claim form on 19/12/08.

3. Acknowledged claim on-line.

4. Sent a CPR 18 Request for Information (letter as per this forum) by special delivery to CL Finance Ltd.

5. Sent request for copy of my credit agreement (letter as per this forum) with £1 postal order by special delivery to Barclaycard.

6. Received attached response from Howard Cohen today telling me they are not obliged to provide the information requested.

 

I now need to submit my defence on moneyclaim today as my 28 days are now up to file the defence. I know there are lots on here about these parties but worried about getting this part right so would be grateful of advice please.

 

Thanks a lot

eddiepae

Lewis Debt Recovery.pdf

Howard Cohen response.pdf

Claim Form.pdf

Edited January 20, 2009 by sev67

[creditcardmug]

Why have you left it so late, if you dont get this in by tomorrow, they will have a judgement against you.

 

Have you had any documents at all? have you ever had a Default Notice?

[sev67]

Hi thanks for the response.

 

I hadn't properly worked out when I need to respond and have had my head in the ground. When I received the response from Howard Cohen today I came back on here looking for help...doh!

 

The only correspondance received from Lewis Debt Recovery or CL Finance is the one attached. I did receive a default notice from Mercers back in April 2008 but am financially in a mess and seem to find a few days of strength at a time.

 

I have been reading on here about similar situations and was thinking that I should submit this defence this evening on moneyclaim, "1st Credit vs Animal" with the appropriate change of names.

 

Draft / Defence

 

1 The Defendant denies ever having been indebted to MBNA Europe Bank Limited (MBNA) and denies credit has ever been advanced to him/her by MBNA.

 

2 The Defendant repeats paragraph 1 of his/her Defence and denies a debt was and/or was capable of assignment by MBNA to the Claimant.

 

3 The Claimant's claim to be entitled to £3877.96 for debt, to statutory interest or to any monetary or other relief of any kind is denied.

 

I BELIEVE THE FACTS SET OUT IN THIS DEFENCE ARE TRUE

 

Signed:

 

Dated:

 

 

Do you think this would be suitable to get me to next stage whilst I get some my head together and read more on this site?

 

Regards

eddiepae

[creditcardmug]

File this on moneyclaim tonight, with luck you will be in time.

 

When you have time post up the Default Notice so that we can see if its valid

 

 

 

Defence

 

 

 

 

 

 

• I, ********** of ************** make this statement as my defence to the claim brought by **************
  
• The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the 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
  
• No documents supporting the claims in the particulars have been offered and despite a request to the claimant for further information none has been forth coming and as a result I cannot plead in defence to the claim
  
• Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.
  
• Further to that above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.
  

[sev67]

Thanks creditcardmug, really appreciate your help. I will file it now!

 

Whats my next step....I'm sure I have read somewhere on here they now have 28 days to respond to my defence and that I should receive confirmation from the court that my defence has been submitted. If I am right what should I do next? If I'm not right please put me right!

 

Thanks again

eddiepae

[shammy36]

subbing:)

[creditcardmug]

Yes they have 28 days to respond, if they do it will be transferred to your local court, and you will both get an allocation questionnaire to fill in.

 

Phone the court tomorrow to make sure your defence went through okay

[blind-as-a-bat]

Thanks creditcardmug, really appreciate your help. I will file it now!

 

Whats my next step....I'm sure I have read somewhere on here they now have 28 days to respond to my defence and that I should receive confirmation from the court that my defence has been submitted. If I am right what should I do next? If I'm not right please put me right!

 

Thanks again

eddiepae

 

yes they have 28 days, at which point you should recieve an allocation questionaire, if they still have not supplied any documents you could ask the court to order them to do so, exacly how depends on the type of AQ.

[atwozee]

Hi eddiepae, shame you didn’t request information in accordance with CPR 31 – never mind it’s done now and no point worrying about it you can enter a proper defence later – I’m defending a claim with CL also but I am a little bit behind you with the timings.

I got the exact same letter from Lewis – if it’s meant to be a letter before action then it’s a pretty poor version of one.

TBH I wouldn’t post up a copy of the DN (assuming you had one) – it is up to CL to prove that one was issued and that it complies with the regulations in both form and content – wait and see if they can provide a copy first – if they can’t then they are going to have a hard time making this claim stick – same goes with the agreement and the Notice of assignment and the actual assignment they aver to.

Lots to do but you aren’t alone.

Whatever you do from now on don’t leave it till the last minute – easy said I know but you need to prepare hard for this.

Good luck.

[sev67]

Hi, I filed the defence last night and rang the court today to confirm it had been received, which they confirmed. My understanding of next steps are;

 

1. I dont need to respond to Howard Cohen acting for CL who said they are not obliged to supply the requested information. It is up to them to respond to me, or the court, or both, and then act accordingly.

2. I will come back and update the forum if I receive a copy of the alleged agreement from barclays.

3. Depending on the response in the next 28days (16th Feb) I will come back and discuss either;

(a) the AQ to be completed and then the particularised defence, or

(b) the lack of response by CL within the timescales.

 

Please correct me if I am off track, and thanks again to all for the speedy help last night, it feels great to know I'm not alone and its all be done before on here....fantastic! I hope to return the favour to someone one day as I learn more.

 

P.S. Comment noted from atwozee about DN.

[creditcardmug]

Phew, so you filed it in the nick of time, that's great, so its yes to all the questions above, just sit back and wait to see what you get now

 

Regards

[sev67]

Hi - enclosing an update.

 

After receiving written confirmation from the court acknowledging receipt of my defence I estimate the 28 days to repsond will be circa 18th-23rd Feb.

 

I have received the attached letter and copy T&C's from Barclaycard today, instead of the signed agreement. I wrote to them enclosing my £1.00 fee using the following letter which begins; "This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974."

http://www.consumeractiongroup.co.uk...tml#post162367

 

I have also been reading the new thread:

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

However, I note this refers to Disclosure before proceedings start..!?!

 

What are my next steps;

1. Do I need to re-approach Barclaycard to get a signed copy of the agreement, if so using which letter?

2. Shall I continue to wait to hear from the Court with Howard Cohen's response to my defence and the AQ? (ie. no 2nd approach to request the information they say they don't have to provide).

 

I haven't succeeded in collecting any real information to build my defence on if/when the AQ arrives?

 

Thanks.

Barclaycard response to.pdf

[42man]

Is that all Barclaycard have sent ? 4 pages of terms ? no signature document ?

[42man]

They are stuffed without the agreement, especially as there is no signature evidence that you have had an account with them...your defence is spot on IMO....just a shame we couldn't have ordered a CPR31.14 to Cohens....!! Keep ringing the court every so often as some post from courts can go walkies, keep us posted as to when you hear back......

[42man]

A SAR might be a good idea too, to take the sails out of Cohens, especially as you haven't got a compliant default note from them (which will be something you might be able to raise in the AQ - i'm not sure...

 

Send this to Barclaycard (enclose a £10 postal order and send recorded)...they have to comply in 40 days, I realise this might possibly be too late, BUT it shows you are being proactive in finding out the information, I have edited slightly to get them to confirm IN WRITING IF THEY DO NOT HOLD THE REQUESTED INFORMATION

 

address it to the Data Controller at the company:-

 

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

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

3. 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 ORIGINAL CREDITOR.

4. 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.

5. 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).

6. Details of any collection charges 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.

7. 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.

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

9. 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.

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

 

IF YOU RESPOND WITHOUT PROVIDING THE ABOVE INFORMATION - IT WILL BE PRESUMED THAT YOU ARE UNABLE TO REPLICATE OR COPY ANY OF THE ABOVE REQUESTED ITEMS

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

 

sign your name but put crosses through it so it can't be 'lifted'

[pt2537]

personally id ring Cohens, ask them if they have in their possession the signed credit agreement and if they do can you be sent a copy, they are obliged to supply this as its part of their pleaded case and therefore under CPR 31.14 you are entitled to a copy

 

 

if they refuse to provide it then you can raise the matter with the court and the court is likely to take a dim view of this

[42man]

PT can he still make a CPR31,14 despite is defence already having been submitted ?

[sev67]

Hello again

 

I have now received my Allocation Questionnaire to be in by Mon 16th March. In the meantime I have received no other information from Barclaycard, Howard Cohens or CL Finance.

 

Quick history...claim against me is for circa £3900. I sent;

1. "CPR 18 - Request for Information" to CL Finance on 7th Jan and had response from Howard Cohen on 19th Jan saying not obliged to provide.

2. "request pursuant to s.77/78 of the Consumer Credit Act 1974" on 7th Jan to Barclaycard and had only T&C's sent to me.

I have not called HC and not sent Subject Access Request to Barclaycard or anything further to CL.

Could someone please provide assurance and guidance for my AQ but specifically section G and H which I will complete as follows;

A Settlement - Would you like to use the free small claims mediation service = NO

B Location of Hearing - Any reason for another court = NO

C Track - Do you agree small claims track is most suitable = YES

D Witness - How many other other witnesses are you calling = 0 (zero)

E Experts - Do you want permission to use expert = NO

F Hearing - Any days you can't make = NO

G Other Information - don't know what to write here?

H Fee - Have you attached a fee for filing this AQ? = NO...?? An allocation fee is payable if your claim or counterclaim exceeds £1500 (I'm only defending a claim so I this seems as though I don't need to enclose a fee. Am I right?)

 

Should I still send out a Subject Access Request to Barclaycard with £10 fee even at this point?

Anything else I need to do?

I still have nothing to assist me with my defence once I have submitted the AQ and it goes to the next stage. Therefore it seems as though I am heading for another embarassed defence, similar to the one I entered in the original claim form I recevied from the court.

Look forward to hearing from you.

Thanks

Edited March 12, 2009 by sev67
font notes were added to i needed to delete

[42man]

Eddie is it 149 or 150 ?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170982-dreaded-court-claim-came-4.html#post1966689

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/159341-court-papers-received-what-6.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161188-allocation-questionnaire-urgent-help.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

[AndyOrch]

Hello again

 

I have now received my Allocation Questionnaire to be in by Mon 16th March. In the meantime I have received no other information from Barclaycard, Howard Cohens or CL Finance.

 

Quick history...claim against me is for circa £3900. I sent;

1. "CPR 18 - Request for Information" to CL Finance on 7th Jan and had response from Howard Cohen on 19th Jan saying not obliged to provide.

2. "request pursuant to s.77/78 of the Consumer Credit Act 1974" on 7th Jan to Barclaycard and had only T&C's sent to me.

 

I have not called HC and not sent Subject Access Request to Barclaycard or anything further to CL.

 

Could someone please provide assurance and guidance for my AQ but specifically section G and H which I will complete as follows;

A Settlement - Would you like to use the free small claims mediation service = NO

B Location of Hearing - Any reason for another court = NO

C Track - Do you agree small claims track is most suitable = YES

D Witness - How many other other witnesses are you calling = 0 (zero)

E Experts - Do you want permission to use expert = NO

F Hearing - Any days you can't make = NO

G Other Information - don't know what to write here? Are you making any directions?

H Fee - Have you attached a fee for filing this AQ? = NO...?? An allocation fee is payable if your claim or counterclaim exceeds £1500 (I'm only defending a claim so I this seems as though I don't need to enclose a fee. Am I right?) Yes

 

Should I still send out a Subject Access Request to Barclaycard with £10 fee even at this point? No send a CPR request

Anything else I need to do?

 

I still have nothing to assist me with my defence once I have submitted the AQ and it goes to the next stage. Therefore it seems as though I am heading for another embarassed defence, similar to the one I entered in the original claim form I recevied from the court.

 

Look forward to hearing from you.

Thanks

 

Regards

 

Andy

[sev67]

42man - The form is N149.

 

andyorch -

"G - are you making any directions?"

sorry I don't know what you mean?

 

"No send CPR request"

Already sent CPR 18 to CL Finance and request persuant to s.77/78 to Barclaycard. Do you mean I should send CPR 18 to Barclaycard? I thought I had read that a Subject Access Request would be better at this stage. Could you clarify this a little more please.

 

Thanks

[AndyOrch]

If the BC is not aa matter of litigation then yes send the S.A.R.

 

In G Other I would advocate something along the lines of:-

 

The Claimants are deliberately frustrating these proceedings and preventing me from submitting a defence/counter-claim, by refusing to provide information first requested under a Subject Access Request on the xxth xxxxx 2008/9. They have only partially complied with my request. I have sent letters to the Claimants Solicitors on the xxth xxxxx repsectively, requesting the outstanding information, which has to date not been furnished. I believe this is entirely unreasonable behaviour and I will shortly request an Order from the Court compelling the Claimant's compliance, to enable me to file a defence/counter-claim

 

 

Regards

 

Andy

[sev67]

Andy - noting your comment I read it as though..

"If the BC (barclaycard) is not a matter of litigation then yes send SAR".

This is a defence and therefore not in litigation so yes I should send the SAR. Correct?

 

What is the letter I sent to BC on the 7th Jan which begins "This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the agreement relating to the above account, together with any other documentation the Act requires you to provide." Is this a SAR? If so why do I need to send a different version today?

 

Also I haven't written to the solicitors HC, only to CL with a CPR 18 and to BC as above. Therefore I can't write in my AQ that I have written to their solicitors.

 

Sorry, I'm not quite following all of this and am getting more confused than ever.

[AndyOrch]

Andy - noting your comment I read it as though..

"If the BC (barclaycard) is not a matter of litigation then yes send SAR".

This is a defence and therefore not in litigation so yes I should send the SAR. Correct?If you have recieved a Summons and you are defending then you send a CPR (no cost)request if not then you send a SAR(£10.00) have BC issued a summons?

 

What is the letter I sent to BC on the 7th Jan which begins "This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the agreement relating to the above account, together with any other documentation the Act requires you to provide." Is this a SAR? If so why do I need to send a different version today?No thats arequest for your CCA (consumer credit agreement) not a SAR

 

Also I haven't written to the solicitors HC, only to CL with a CPR 18 and to BC as above. Therefore I can't write in my AQ that I have written to their solicitors. edit to suit

 

Sorry, I'm not quite following all of this and am getting more confused than ever.

Ill have a read of your thread from the beginning im getting confused now:confused:

 

Regards

 

Andy

[sev67]

I have only received a claim form from Northampton court with the claimant as CL Finance. I entered my defence and now have an AQ.

 

Therefore, I should have sent an SAR and not CPR18.

 

So I need to send out an SAR to BC today. And write the following in my AQ;

 

The Claimants are deliberately frustrating these proceedings and preventing me from submitting a defence/counter-claim, by refusing to provide information first requested under a "CPR 18 - Request for Information" sent to them on the 7th Jan 2009. I also have sent a request to Barclaycard on the 7th Jan 2009 for a copy of the "Consumer Credit Agreement" that the Claimant refers to but they have only sent me a copy of some Terms and Conditions and have not provided a copy of a Consumer Credit Agreement that refers to my name or address. I believe this is entirely unreasonable behaviour and I will shortly request an Order from the Court compelling the Claimant's compliance, to enable me to file a defence/counter-claim.

 

Is this correct for my circumstances?

Should I send out a SAR to both BC and CL today to assist me later?