Equidebt County Court Claim

[needy]

Hello, I hope you can help us, my partner has been sent a county Court claim he has filed an acknowledgement of service to get extra time for an defence, he requested the CCA from both equidebt and GPB with a one pound postal order. To date only the Solicitors have responded saying they have referred the matter back to their clients. The Court papers make reference to the fact they sue under a CCA. But no CCA has been sent to us yet. Please can you help us word our defence. Thank you

Edited August 2, 2009 by needy

[needy]

Hello, I hope you can help us, my partner has been sent a county Court claim he has filed an acknowledgement of service to get extra time for an defence, he requested the CCA from both equidebt and GPB with a one pound postal order. To date only the Solicitors have responded saying they have referred the matter back to their clients. The Court papers make reference to the fact they sue under a CCA. But no CCA has been sent to us yet. Please can you help us word our defence. Thank you

Edited August 2, 2009 by needy

[Guest Gordons Barking]

Bump

[creditcardmug]

Hi and welcome,

 

Is this a credit card/loan,something else? what is the date on the claim form?

 

Can you post up the Particulars of Claim? (leave out anything which could identify you)

[42man]

Needy....can you tell us what the Particulars Of The Claim are ?

[Shawn0109]

needy can you describe what the debt is for, is it credit card, loan, cataloge when did you last acknowledge the debt and how old is the debt? If you have already sent a CCA to both the solicitors and the DCA what have they sent you if anything back to support their claim? Has this debt been purchased by a DCA from the original creditor or not? How did you send the CCA request by recorded delivery or normal post? I know it's a lot of questions but we need to establish these facts in order to help you.

[needy]

Hello, yes many thanks, it is a credit card but it does not state that on the claim form there is no reference to a credit card or credit card number or company. In particulars of claim it says "the claimants claim is for the sum of, being monies due under a consumer credit agreement. The sue as assignees of the agreement Notice of assignment has been provided" thats all its says.

 

The day of service is 11th January but he put in an aknowledgement of service saying he would defend all the claim and to get 28 days to do so then we found this fantastic site, hope you can please help us

[Shawn0109]

Ok what I would do is send another CCA to the Debt Collection Agency by recorded delivery how long ago was it since you sent the last one if I may ask?

[Shawn0109]

Oh sorry also you mentioned in the documents that it says Notice Of Assignment which means that the Debt Collection Agency has purchased this from the Original Creditor so they should really have all the information from statements to the Credit Agreement, I have just won a Statutory Demand to be Set Aside in court which was for bankruptcy because the DCA who purchased my debt didnt provide a CCA and they didnt even attend the hearing and really they didnt have any of the documents I asked for, so like I say depending on how long ago you sent your CCA request if it has gone past a month already they are in default of your request and this means that the debt will be unenforcable.

[needy]

Hi yes we sent the CCA s by special delivery so have proof of receipt, the solicitors have acknowledged the receipt of the letters by sending a letter stating we acknowledge receipt of your correspondance we have referred to the claimant for their instructions upon which we will contact you. I am not sure if equidebt are managing the debt or have bought it. Thanks again

[needy]

Hi we sent the CCA by special delivery on 9th January we did not know you could do it before until we started reading up on it should we send them a seond letter Many thanks

Edited August 2, 2009 by needy

[Shawn0109]

Ok look at this thread it explains in some detail that I think would be of use to you in your case http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html if thats not what you need there is plenty of information type in what you want to know in the search forums box there is pages and pages that you will be able to get info from.

[needy]

Hi signed for it on 12th January 2009 but have not replied. Many thanks

Edited August 2, 2009 by needy

[needy]

Hi Great many thanks but we have to write a defence is there a standard defence that we need to put before the judge any thanks

[Shawn0109]

Ok have you recieved a Notice Of Assignment also known as a Deed Of Assignment this is just 2 letters in one it contains one from the original creditor saying they have sold your debt on to a dca or debt purchaser and the second one is from the dca stating that they are now the legal owners of the debt, on the court forms what company name is on the form is it the original creditor or the dca and also if this debt was purchased then the original creditor should still have the original credit agreement which the dca will have to go back to and retrive.

[Shawn0109]

Just state that the debt is in dispute due to none production/compliance of a CCA Request under the Consumer Credit Act 1974. The main argument is that it is the none compliance by equidebt of your CCA Request, also how much is the debt for are there any charges on there for example late payment fees overlimit fees interest charges they can also be in your argument. For a none compliance of a CCA is a big "NO" no agreement = unenforceable = debt does not exsist.

[Shawn0109]

Ok here try this as your defence.

 

In the Northampton County Court (CCBC)

 

Claim number

 

 

 

 

 

Between

- Claimant

 

And

 

 

- Defendant

 

 

 

 

Defence

 

1. I, xxxx of xxxxxxxxx make this statement as my defence to the claim brought by xxxxxxxxxx

 

2. 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

 

3. No documents supporting the claims in the particulars have been offered nor have any dates of agreement or account numbers been stated which the defendant needs to establish what agreement it is that this action is based upon

 

4. The claimant appears to be a debt purchaser of delinquent debts and not a money lender, the claimant seems to contend that they are entitled to monies due under said agreement made between the defendant and the claimant Equidebt. The defendant has no knowledge of this company or any indebtedness to them relating to any agreement, the defendant has not entered into any agreement with the claimant and therefore should it be the Claimants contention that they have a claim to monies under an agreement between the defendant and another creditor, the defendant seeks clarification of this fact and proof of legal assignment as required by Law of Property Act 1925

 

5. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit

 

6. additionally the claimant appears to have split the cause of action insofar that they bring a claim for a part of a debt. the defendant notes that this is unlawful and for authority of this fact cites Section 35 County Courts Act 1984 which sets this out clearly.

 

 

7. Further to that above 6 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

8 the defendant seeks permission upon clarification of the claimants case and disclosure of the necessary documents to amend this defence

 

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed .....................

 

Date

[Shawn0109]

And here this is the CPR request you can send to the claimants.

Just adjust it to what you need this is a guide line only.

 

In the Northampton County Court

xxxxx V xxxxx

Claim Number: xxxxx

 

 

Dear Sir

 

REQUEST FOR INFORMATION UNDER PART 18 CPR

 

I have received a recent court claim from your organisation. Your particulars of claim are very vague and in addition you do not disclose the contract upon which this claim is being based.

 

In order to file a defence and any 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 application will be made for an Order enforcing your compliance under the provisions of the CPR

 

If it becomes necessary to make an application for an order forcing your compliance I shall ask the court to consider my costs as well

 

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 XXXXXX Bank.

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

[needy]

Hi wow ! absolutely brilliant, many many thanks will send the defence in now I sent the CPR request which they received but had no response to that either many many thanks we were getting in knots about the defence and what to do next I will keep you updated and many thanks again

[Shawn0109]

Dont thank me personally just did research from other threads and found the information that I thought would help you in your presnt situation, please kepp us all updated and informed of what happens hope this somehow puts both your minds at ease a bit, you guys will be fine as long as you go in there do all your homework study up and answer any questions the judge will ask you will be fine.

[needy]

Hello again

 

we filed a comprehensive defence in addition to CCA requests to both solicitors and equidebt and request for information under CPR 18 for which we did not receive any response apart from a holding letter acknowledging receipt of our letters. We have today received a letter (not by registered post) from the solicitors stating what the debt relates to, a one page copy of a signed credit agreement and a notice of assignment they are inviting us to confirm whether or not we intend to maintain the defence and also ask if we are willing to pay monthly instalments subject to our acceptance of liability and consent to judgement.. so we need help about what to do now please:(

[42man]

Can you scan/photo what they sent you and post it up here ? use www.photobucket.com if need be (free) and there is a tutorial here - http://www.consumeractiongroup.co.uk/forum/bear-garden/165941-photobucket-video-tutorial.html

 

Is what they have sent you an application form or agreement ? Does it contain the prescribed terms on it ?

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

 

Also have they sent you a default notice ?

[needy]

Hi Many thanks yes I will scan all in for you there is no default notice or credit limit etc it is not an application it says this is a credit agreement regulated by the consumer credit Act 1974. Many thanks again

[creditcardmug]

Hi needy have you had anything from the court yet?

[needy]

Hi yes the letter from the Court said it had passed our defence onto the claiment etc Many thanks