OH v BLS/LTSB

[citizenB]

Yes, I would send the "bemused" letter to them. They must think we are a bit slow on the uptake to not notice they are in the same building !

[citizenB]

You are very welcome and thank you

[citizenB]

Nice to see that they close everything 6 yrs after the account is OPENED!

 

Idiots

 

And yes congrats CB!

 

 

JOgs

 

I would love to see them use that one on the Tax man

[citizenB]

And did they enclose the "application" form ?

 

With regard to your first post and their comments that they do not need to keep paperwork for longer than 6 years after the account is opened.. read this thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear.html

 

Of particular interest will be post # 9

[citizenB]

I rather think the letter in the link I gave you is for where there has been no document supplied at all.

 

I think you have to question the illegibility of the document they have supplied you with. I will have a look round and see if I can find you a letter to send

[citizenB]

This is the regulation

 

 

Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

Still looking for letter

[citizenB]

Right, well I dont seem to be able to find anything that is suitable, so how about this...

 

 

 

Dear Sirs,

 

I am in receipt of your letter dated (whenever).

 

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. All you have sent is a pre-contractual application form, which is barely legible and therefore not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557), your attention is drawn to regulation 2 (1) which sets out how copy documents must be presented.

"Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the ."

 

From what I can see, the document you have provided does not contain any prescribed terms. Nor have any historic terms and conditions been supplied.

 

I am therefore unable to assess if I have any liability as claimed by your client.

 

Yours faithfully,

 

Short and sweet.

[citizenB]

Aint that the truth ?

[citizenB]

Sheesh, that document is a bit of a mess isnt it ?

 

What was the date of issue on the claim form, you will have to keep a close eye on the time scales.

 

Date of Issue + 5 days for service + 14 days to acknowledge (confirm whether or not you are going to defend) + 14 days to submit your defence.... 33 days from the date of issue on the claim form.

 

The clauses they say you have breached, are they correct or can you not see the darn things at all.

 

You need to send off a CPR 31.14 letter. You need to ask for copies of the documents they mention in the POC ie, the agreement, default notice and the formal demand letter. Read and amend the letter accordingly. Have you sent a Subject Access request at any time ?. You wil need to know if the sum they are asking for is correct and you will only be able to do that with a full set of statements. So if you havent, then it might be worth getting one of those in the post to LTSB.

 

 

 

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*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* 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

[citizenB]

I know that oh has 14 + 5 days to acknowledge online.

I'm looking throgh old paperwork. I have the DN; although timescales are correct, the format ie making underlined words bolder thyan the rest of the text, is in correct. Also, I've found a charge of £15 not £12. Does this mean if I get all back statements a claim can be made for the differences. Also if DN is incorrect, should I mention it?

 

When you say the DN is correct are you absolutely certain. Time to remedy from date of DN 14 clear days, allowing 2 working days for 1st class or 4 working days for 2nd class post. How was the DN posted ?. I would not be inclined to mention any irregularity in the DN to LTSB, but it will certainly form part of your full defence.

 

If there are charges/late payment fees inluded in the sum requested on teh DN then it is incorrect.

[citizenB]

Hi, the regulations say this....

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)/SCHEDULE 2 Form of Default Notice before a Creditor or Owner Can Become Entitled,

by Reason of Any Breach by the Debtor or Hirer of a Regulated Agreeement, to Terminate the Agreement, Demand Earlier

Payment of any Sum, Recover Possession of any Goods or Land, Treat any Right Conferred on the Debtor or Hirer by the

Agreement as Terminated, Restricted or Deferred or Enforce any Security

 

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

So if you havent been sent a termination letter, but have been sent a formal demand for the full balance.. then I guess you can substitute one for the other.

[citizenB]

Thank you, just trying to cover all bases and not look as though I have just copied something!!!

 

Always bet to check, you can only ask for those documents they mention in their POC. And.. if the account wasnt assigned, then dont ask for that .

[citizenB]

cpr 31.14 delivered on 17 June. 7 days are up on the 24th. Defence by 15 July. Nails being bitten.

 

SAR to Chatham delivered from Edinburgh Delivery Office

 

Ooh, wouldnt recommend the nail biting.. hell on the front teeth:D

 

Perhaps Chatham is on strike

[citizenB]

Here is a basic holding defence that shadow posted on another thread. As you dont have sufficient evidence from this crowd to defend yourself properly then this is the way to go I think. In point 3, amend the details of what requests you have sent to suit your situation.

 

 

 

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

 

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 and despite a request to the claimant for further information via CPR 31.14 dated xx/xx/xxxx sent by recorded delivery none has been forthcoming and as a result I cannot plead in defence to the claim

 

4. 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.

 

5. Further to that above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

Statement of truth bit here

 

 

[citizenB]

Hi cb, thanks for your input. Dates are correct, 14 days.....in 2003 when they only required 7 However, the format is wrong because the underlined words are not in a heavier type.

The scan is a true picture, t & cs illegible, page 1 all you can read are the headings and oh's details.

The amount being claimed is less than that show on the DN, even if you remove the arrears amount. What does that mean?

Thank you

 

I know I sometimes take a long time to catch up with the programme, but can you confirm your DN was issued in 2003... and they have only just decided to take action ?

 

In respect of the question you asked in the previous post. The holding/embarrassed defence posted earlier supposes that you dont receive anything in respect of your CPR and Subject Access requests. If you do receive information sufficient to submit a fully particularised defence in time then go for it.

 

The holding defence can be submitted online as it has less than the 8,000 characters allowed. If you are going to submit something with a bit more meat on it then you may well have to post it so you are going to have to allow yourself a deadline of say the 12th July (I think you said your final due date was the 17th)to make up your mind. HTH

[citizenB]

surely if the T & C's are illegible they are yet to comply with the cca s78 request so are still in default so should not be taking enforcement action

 

i have not seen any rules in the CCA that say that there is a time limit on when the stop being in default

 

mmmm 5 years of unlawful charges on the account then too!

 

Good spot, DD. So that makes the amount claimed on the POC incorrect ?

[citizenB]

They sent you a DN in 2003, then a formal demand for the FULL amount at that time.

 

They then passed you over to BLS who continued to add interest ??.

 

What you need to find out.. hopefully through the SAR is if they terminated at any point. When did they stop sending you statements, was there a time when perhaps the last statement you received showed a nil balance/nil credit, etc ?.

 

Did **** send you a further formal demand after 2003 ?

[citizenB]

Thank you dd, their 7 days for the 32.14 have expired! this is why I'm questioning everything. C

 

It is good that you do, that way you will understand what is going on.

[citizenB]

**** are not good at responding to CPR stuff..

 

They are devious s*ds as well... so watch your back.

[citizenB]

They are just being obstructive. They have issued a court claim against you for pity's sake.. did they request a signature to ensure it was you at that time ?

 

Put your signature over one of these.. get your own back..

[citizenB]

I cant see any logic at all:)

 

Is there anyway you can reconcile these figures with statements ?, Default Notices, Formal Demands ?

 

The DN must be accurate as must the Formal demand. I think **** add their costs to the court claim but the initiall figure must be correct.

 

Have a look here from posts 82 onwards.. it will give you some idea of how to complete section G on the AQ and as diddydicky advises to ask for their claim to be struck out.

 

http://www.consumeractiongroup.co.uk/forum/mbna/195498-mbna-restons-9.html#post2269687

 

HTH

[citizenB]

Hi citB

All these figures are from letters and statements, but there is nothing that I can logically reconcile the figures with:(

I am waiting for SAR for further information........

I cannot jump from DN 4349 to formal demand 4430 to court papers of 4222.

 

The FD figure is £81.00 more than the DN figure but the court papers are £208.00 less than the FD figure. Could they have reduced the amount by deducting some charges ?

 

I am going to submit the 'embarrassed defence'. Should I now submit the N244 or wait as been suggested for the AQ?

Thank you

 

If you do not have the information required for a fully particularised defence then the embarrassed/holding defence is best. Make sure you include the request to amend your defence when document requested has been supplied to you.

 

Ok, I asked why the N244.. but then remembered why. Ummm, not sure, I think you need DD or CCM back for that question. I think at this stage you just need to get the defence in on time.

 

However, I have alerted the site team for you.

Edited July 8, 2009 by citizenB

[citizenB]

Hi citB as you can see I'm now getting confused

 

N244 was to try and get case struck out because of lack of information (illegible copy of application form) and no reply tp 2 requests under cpr 31.14.

 

If you deduct any charges and add payments made......this is a lot more than £208.

 

Snap, that makes 2 of us. When do you have to have this defence in by ?

[citizenB]

Thank you.

I'll get the defence in tonight, I think I can do it online as it is so short.

I've printed off the N244 and will shout if I need help.

Do you have to attend court or is it just submitted and reviewed by a DJ?

 

You wont have to go to court just yet You submit your defence online to Northampton Bulk Centre. The next stage is the AQ and the transfer to your local court.

[citizenB]

The embarrassed defence in the following link is possibly the shortest I have seen.. It also gives a very good reason, why the embarrassed defence should not be long and over complicated.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1617381.html

 

I have copied the text over for you as well...

 

 

Original post by aloysiush

 

A defence should be deal with the claimants pleading and not be complicated and long in these matters. It should not contain references to cases etc. Do not forget you may have to argue that which is contained in your defence and so you need to understand that to which you are endorsing a statement of truth. The case of Dimond v lovell is not on all fours with this case. Until the claimant pleads in an appropriate manner, you should not reveal all your 'cards'. I suggest a defence as follows:-

 

 

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleadindg in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

2. Further to that above the defendant is unable to plead effectivley or at all. The defendant is embarassed.

 

The above is all you need to place in the defence.

 

 

You should write to the claimants solicitors as follows:-

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead yor clients case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR rather than the Northampton County Court regime.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.