County court claim help please

[atwozee]

They will have to prove you owe the money and if you have copies of statements that prove you don’t then they are going to run into problems.

Wait and see what response you get from the defence you submitted – if you don’t here anything within the next 4 weeks then phone the court for an update.

You could also write to the solicitors stating that you don’t recognise the account and request copies of statements to validate the claim under civil procedure rules.

[atwozee]

Hi I did do that, and sent it recorded delivery, the 14 days is up monday. Will I be able to show in court that I have evidence of said account?

Yes – if it goes to trial you will have to disclose any documents you intend to rely on and so will they.

Also, having read other threads, I was worried that the defence I submitted was not correct but then I understand at this first stage that it was enough.

As long as you disputed the amount and said prove (or words to that affect) it then that is what will have to happen.

thanks

 

Give the sols a call on Monday and ask them if they intend to send the info you requested - if not then ask them to confirm why not in writing.

 

You can't do a lot now until they decide to continue or not - they would be pretty silly to continue without being able to prove how the sum claimed was reached.

[atwozee]

Well the first thing is they need to be claiming for the correct account/agreement – so if they’ve got all this wrong then they will need to amend their claim – they could discontinue and make a new correct claim stating the proper facts or they could apply to change the PoC with your permission.

There really isn’t a lot more you can do until they decide to continue or not. At some point they will have to produce the relevant info to justify the claim – they can’t just turn up and say so and so owes this without showing how the debt has been calculated.

If this claim is really to do with a loan rather than a current account then they will need to produce the agreement and a valid default notice – without those documents they will struggle with their case.

Maybe they have been silly and transferred the balance outstanding on your loan into your current account and are claiming on that basis. That would present a massive problem with their claim IMHO.

[atwozee]

It seems very odd to me that for X amount of years its been a loan and when I ask for CCa they sell it on as an overdraft, after all, overdrafts are not covered by the CCA are they!!

They can't just convert a fixed sum credit agreement into an overdraft unless you agreed to it - that would be a complete breach of the Consumer Credit Act.

 

They will have to disclose what they intend to rely on as the case progresses - that's when you have to be on the ball with your defence - you can only counter the argument they put forward so let's see what they come up with.

[atwozee]

Just read your other thread – probably best to stick to this thread now and post a link to it from your other thread.

Just to reassure you – if it turns out that the HSBC have transferred the balance of a regulated loan into an unregulated overdraft then their case will be easily defended. In doing what they have done they will have terminated the regulated account incorrectly therefore losing any right to recover any outstanding monies.

[atwozee]

Don’t worry Fedupwith – you will get help filling in your AQ – I’ve got one to fill in as well – I’ve seen a few threads with relevant info – I will post you a link but won’t be till tomorrow – plenty of time – you will basically be confirming that you cannot defend properly until they send you copies of the Agreement, Default Notice and NoA.

[atwozee]

Take a look at this link and the rest of the thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/168747-court-papers-filing-defence-4.html#post1965148

[atwozee]

After reading the info on those links I completed my AQ no problem – Pt’s a hero along with many others – In your case you need to ask for a copy of the loan agreement (state the account number if necessary) and any information regarding its settlement/termination/default because it is intrinsic to your defence – you also need copies of all statements to verify the amount claimed is accurate.

As I said earlier in the thread if they have been stupid enough to transfer a balance on a regulated loan into an overdraft without obtaining a signed modifying agreement that is compliant with the CCA 1974 then they are going to have a hard time justifying their claim.

If you need more help with the AQ then shout up.

[atwozee]

Hi just trying to sort out my AQ and wondered if this is ok for the attatched directions and if not would somebody mind editing it for me thanks :-

 

Between

 

 

************* - Claimant

 

 

 

 

 

 

and

 

 

 

 

 

 

 

 

xxxxxxxxxx - Defendant

 

 

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

The Claimant shall within 14 days of service of this order file and serve the following:

 

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of all statements for the duration of the account in order to verify the amount claimed is both accurate and lawful.
  
• Copies of any other document to be relied upon by the Claimant.
  

Also:-

I put the claimant to strict proof that the bank account listed in the POC is indeed a HSBC current account and not a First Direct account to which we have all statements relating to said bank account number xxxxxxxxx

 

Also:-

 

I put the claimant to strict proof that the alleged debt is in fact an overdraft and not the bank loan, as listed in said statements, namely statement number xxx dated xxxx

 

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

 

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

 

Blue = modified

Red = Save that for witness statement which comes later.

 

Under other information I suggest you let the court know that the claimant hasn't complied with any previous request for information - attach a copy of the letter you sent to the claimant.

[atwozee]

This is what I came up with - can't remember if yours is fast track (over 5k and under 15k) or small claims (under 5k)

 

Edit to suit

 

Claimant (edit) -v- Defendant (edit)

Claim No: xxxxxxxx

 

 

N150 Allocation Questionnaire

 

 

Section I

Other Information

 

 

As a consequence of the Claimants refusal to comply with the Defendants previous request for information which is necessary to submit a fully particularised defence and if the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

 

 

The defendant proposes these directions in mind of the overriding objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

 

 

Without production of the documents requested in the draft order, I am at a disadvantage and am unable to serve a proper defence or counterclaim. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as non-production of the requested documentation will inhibit the courts ability to deal with the case.

 

 

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

 

 

To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). Failure of a default notice to be accurate not only invalidates the default notice (Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1 9 9 8) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

 

Copies of statements are necessary to establish the alleged balance on the account, to establish the percentage of the balance caused by unfair terms under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding on the defendant, and to establish whether or not the defendant is indeed indebted to the claimant to any degree. My previous request for this necessary information has been ignored.

 

 

 

These documents are also necessary to determine the true balance on the alleged account at the time of default and termination. If the balance quoted on the default notice should be inaccurate to a degree greater than de minimis, either by the levying of unlawful charges deemed unfair under the Unfair Terms in Consumer Contracts Regulations 1999 or any other reason, then the default notice is rendered invalid as per Woodchester v Swayne & Co [1998] EWCA Civ 1209.

 

 

 

Its is respectfully requested this case be allocated to the small claims/fast track (edit accordingly), it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

 

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further.

[atwozee]

No need to be sorry – you must ask if you are unsure – even if it is obvious.

Just write - *Please see other information attached*

Print off onto a separate piece of paper along with the directions and the copy of the CPR letter you sent and staple it all together.