help needed with GE money ccj claim

[zara35]

hi there.....

 

Right this is just another of my many battles but I am a bit unsure what to do and how to proceed. Here is the story so far....

 

I wrote to Ge money requesting copies of 2 agreements i had with them, mothercare and house of fraser. I also did an sar request as i beleived there were charges and ppi included.

 

the agreements came back and they look to be enforcable. So i calculated the amount of charges at £282 on both accounts and wrote to them. They said they would refund 45 on mothercare and 75 on h of fraser as full and final settlement and have done so even though i did not agree to it. That was on 22nd jan 09 and it shows on my feb statements that they have refunded it. I asked for all ppi to be cancelled and they have charged me another £12 late fee and continued to charge PPI.

 

I also calculated that the insurance premiums were £205 on h of fraser and £370.13 on mothercare. I beleive i had been mis sold ppi and wrote to them with words to that effect explaining why. However, they have refused to refund them and have now assigned the mothercare debt to CL finance who have issued a CCJ claim.

 

I recieved this and it is dated 16 feb 09 and i did the ackowedgement of service straight away and so i now have until the 16th march to file the defence and am unsure on what to do given that i did not get all my charges back and that they refused to refund the PPI.

 

The amount of charges was £135 on mothercare and they refunded £45. The amount of PPi paid is £370.13. They also say they were unable to locate statements for 04, sept,oct,nov and 05, mar,apr,may and june so i dont kmow if there were charges then.

 

The amount of claim is £761.78 plus costs equals £886.78 however this amount obviuously includes charges and PPI.

 

I need help to wrtite a defence and should i be sending a CPR letter to CL finance and should i be counterclaiming.

 

please help.

 

thankyou

[zara35]

also just read that they have not been able to find statements aug 2006 to feb 07 and july 07 and sept 07 so god knows what other charges i have had.

[zara35]

aslo forgot to say that i did not get a copy of the default notice with the sar or a letter before action from mothercare or from cl finance. Also i got a copy of the agreement but no original terms and conditions or current ones.

 

The POC are:

 

The claimants claim is for the sum of £768.78 being monies due from the defendent under a regulated agreement between the defendent and Ge Capital bank td under ref...... and assigned to the claimant on 11 feb 2009 notice of which has been given to the defendent.

 

The defendent fhas failed to make payments in accordance with the terms of the agreement and a default notice has been iserved on the defendent pursuant to section 87(1) of the cca 1974.

 

Pursuant to clause 7 of the agreement the claimant also claims contractual interest at a rate of 22.44 pa from the date of these proceedings to the date of judgement or sooner at a daily rate of 0.56.

[zara35]

do i send a cpr 31.13 or cpr 18 not aure but it needs to go off today or tomorrow so anyone please ??

[e28bigalbexley]

HI Zara

Has the claim form come from Northampton?

[42man]

Did you acknowledge on line stating that you would defend ALL of the claim ? if so good....

 

Was the default notice compliant ? Did you ever receive a notice of assignment ?

 

I would send this off straight away to the opposing solicitor/claimant (is it CL ?) by recorded, but read this through very carefully and try and understand it...

Also read here - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

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][delete if no such request was delivered]

 

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 / the] document(s) 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 assignment*

 

3 the default notice*

 

4 the termination notice*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) 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 version(s) to include an obligation to recover and preserve such version(s) 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

 

[42man]

It would seem that the default notice would in any event be invalid as there are excessive charges on the account too.....

[zara35]

hi there thanks for that will get that off today....i did an sar reqyest and got it back but there was no default notice with it so i dont know if i have ever had it.

 

Do you know what i should put as a defence or should i wait to see what comes back...yes it is Cl and i acknowledged online defending in full. The defence is due by the 16th Feb...

 

thanks again

[e28bigalbexley]

The defence is due by the 16th Feb...

thanks again

 

Lets hope that the defense is due by 16th March:eek:

[zara35]

hi there...

Do i file an embarrased defence if they dont produce anything in time ? can anyone help with this.

[zara35]

bump....can anyone help with what to put as a defence ??

[42man]

Have a look at these - http://www.consumeractiongroup.co.uk/forum/legal-issues/161469-1st-credit-animal-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167353-help-court-claim-howard-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/156156-help-mum-being-taken.html

 

The rate of interest they are claiming is excessive also....

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/157091-can-anyone-help-defence.html#post1677413

[42man]

One here that http://www.consumeractiongroup.co.uk/forum/general-debt-issues/175937-natwest-3.html#post1986101

 

BUT scroll down on that link, as it mentions insertion of CPR 31.14....

[zara35]

omg im so confused....can someone write something for me ? I want to defend all of claim.....re charges incurred and ppi added when not eligible and asked for refund but been refused. i have the agreement but no default notice or LBA ...thanks

[42man]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

 

 

and

 

 

XXXXXX- Defendant

 

Defence

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.
   
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
   
3. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;
   

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

5.Further to the case, on XXXXXXXX I requested the disclosure of information pursuant to part 31.14 of the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. The claimant has not complied with this.

 

6. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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

 

7. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 6 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

8. Notwithstanding points 6 and 7, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

9. The claimant is therefore put to strict proof that such a complaint document exists

 

10. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

 

11.Notwithstanding point 10, I put the claimant to strict proof that any default notice sent to me was valid. I note that 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)

 

12. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a 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)

 

13. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

14. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

17. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

 

 

 

Statement of Truth

 

 

I xxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

[zara35]

hi 42 man....that looks great but i have had copy of the agreement from ge money and it looks to be ok...i have not had it from cl finance however nor have i had a copy of the default notice from either the OC ot CL. Should i mention unlawful charges and PPi...i am quite happy to pay the difference of what is left but want them refunding.

 

I reckon they owe me £460 plus interest which leaves £300 to pay.

 

I need a defence which states that their are unlawful charges and PPI or should i just file embarrased defence and wait and see if they turn up with any documents.

 

thanks again

[zara35]

bump can anyone advise ?

[DocH]

I would suggest you go with the holding/embarrassed defence for the moment. In paragraph 17 of the defence that 42man has provided you are asking the court's permission to submit an amended defence, in which you can cover you PPI and penalty charges.

 

When the claim form was served you should also have been served with a copy of the agreement, default notice and any other documentation they are relying on for their claim in accordance with the Civil Procedure Rules. It doesn't matter that you've already got a copy of the agreement, CL should also have served one.

[zara35]

thanks for your help....i have filed defence today on line. Didnt use all of the cases as i read somewhere not to give to much away but have used most of it.

[zara35]

Hi there

 

an order came today from the court saying:

The claimant shall within 14 dyas of this order file and serve the following;

Copies of credit agreement

Default notice

Notice of assignment

Statements and any other documents relied upon

The defendant shall within 14 days therafter file and serve the following

An amended defence

 

It was dated 18th May so they ahve until June 1st.

 

What happens after this. Can i apply to have the case struck oou and if so how do I do this?

 

thanks

[BeauBrummie]

Hi Zara35,

 

Any update to this case, I am just starting on the same road with the same POC from Howard Cohen.

 

Thanks

 

Beau