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Claim Form Recieved - advice needed if possible


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Hi All,

 

The potted history is thus; I run a mortage broking firm, and over the last eighteen months have seen my income reduce to less than 20% of what it was. The loans and credit cards which were easy to manage have become insurmountable milestones, and all are now in serious arrears. I have followed the usual advice of writing to everyone enclosing a financial statement and offering token payments for the time being, and in all but one instance have been completely ignored.

 

At the begining of the month I received a letter from Spratt Endicott concerning a personal loan with Mint taken out in August 2006, in which they threatened court action. I replied with yet another financial statement, and a copy of all previous correspondence, but also sent a CCA request to Mint to which they haven't replied (dated 07/04/2009). Today I have received a claim form from Banbury County Court, and would really appreciate some advice/guidance on what I should do now.

 

The claim form has arrived with N9, N9A & N9B but nothing else. The particulars of claim state "The Claimants claim is for monies due under a consumer Credit Agreement between the Claimant and the Defendant. Notice of Default having been sent to the Defendant on the 03.02.09. Full particulars of which have been delivered to the Defendant. The Claimant complies with Sections III & IV of the PACPD AND the Claimant claims the sum of £XXXXX.XX"

 

I may have received a Notice of Default (there are so many) but have certainly not received anything else.

 

I would like to try and defend this if at all possble, as a large CCJ may have an adverse effect on my ability to remain authorised by the regulator.

 

If there is no reasonable defence, then I am confused as to what to do. The instructions say to complete N9A including the offer of what I am able to pay and send to the claimant, but not to the court. If this is the case, how will the court know the details of it. Would it not be possible for the Claimant to deny any knowledge and try and obtain a default judgement after the fourteen days.

 

Thanks :)

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How much is the claim for?

 

When did you get the summons? - you need to check the response pack and find out when the defence is due - at this point I would send of the acknol of service saying that you intend to defend all of the claim

 

You need to get more information - send a CPR 31.14 ASAP - give them 7 days to respond. - presumably as you have a fax send it by fax. If there is no reply then on the 8th day send a chasing letter with a copy of your original letter telling them that if they don't respond in within a further 7 days that you will apply to the court for both an Order and costs

 

If you don't want a CCJ and you have no defence you need to write to the other side without prejudice and offer a monthly payment on the basis of a Tomlin Order - that is that they agree to only enter a judgment if you default on the arrangement

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Hi,

 

The claim is for just over £21,000, and the summons was received today.

 

Will a fax receipt be accepted by the court as proof that the CPR 31.14 was sent and received?

 

A Tomlin Order sounds good, but I suspect that the amount I can afford would only be token payments and would probably not be sufficient.

 

I will get the CPR 31.14 done first thing in the morning.

 

Thanks for the advice; I am normally quite confident, but at the moment I am worried that lack of knowledge might lead me to mess it up.

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Yes - a fax receipt is fine in terms of the CPR 31.14 - although you need to send the original acknol of service to the court.

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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As has been said above, acknowledge the claim within 14 days of the date on the claim form, if you are defending it then state that you are defending it, then you have a further 14+3 dasy in whcih to submit a defence....

 

This is the CPR31.14 (send recorded)

 

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.

 

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 default notice*

 

3 the termination notice*

 

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

 

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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Thanks for that :) it is in hand.

 

Do I need to do anything at this stage about Mint not responding to my CCA request, or has that now been superceeded by them issueing proceedings (even though Mint are in default)

 

Thanks

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Just keep a very close eye on the timescales, and do have a read around these forums, there are some useful defences you could have a read through.

 

If they sent the claim form while they were in default of your CCA request you should add this to the CPR letter (send recorded)

 

[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]

 

Some defences.

 

CL Finance Ltd. Recieved a court claim form**WON** Discontinued

 

Lloyds TSB Credit Card - Claim form received

 

Help! - AMEX No CCA and they've started court action.

 

 

welcome fianance/Court case started.

 

Help! Court Claim from Howard Cohen on behalf of GE Money

 

1st Credit vs Animal

 

With regard to your CPR you might find this useful too -

 

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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I have sent the CPR 31.14 letter as suggested today (recorded) and also the acknowledgement of claim. Whilst looking round the forum, there seems to be another sort of request asking for copies of all documents and transcripts of calls etc in addition to the CPR 31.14 request. Is this an alternative, or is it used for something different?

 

Also, does anyone have any suggestions as to how to placate a worried partner. Having gone from a reasonable income to the stage where working tax credit and child tax credit is the majority of our income, she is convinced that within weeks we will have men at the door demanding the kids' Gameboys, and will be living in the street by the summer holidays.

 

I am not too bad at dealing with the phone calls, but she gets thoroughly demoralised whenever the phone rings of a letter comes through the door. She tries to put a brave face on things, but that normally makes things worse.:(

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There are several options. Within the county court there is CPR Part 18 - request for further particulars of the claim - which I think is more about explanations rather than detail.

 

Incidentally there is also 31.16 BUT that applies to pre action disclosure so it doesn't apply where the claim has been issued

 

There are then several other ways, outside of the case to get information - the CCA and the DPA

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Hi, I've got no money.

 

I have tried the CCA route, to which their response was the claim! Are they obliged to give me just what is referred to in the POC or do they have to supply supporting documents if they expect to rely on them :) Thanks

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Pre Action Conduct Practice Direction

 

PRACTICE DIRECTION – PRE-ACTION CONDUCT - Ministry of Justice

 

This came into force from 6 April and it is now a requirement to state in a claim form whether or not you have complied with it (and, if not, why not).

 

It doesn't sound as if they have complied though.

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Hi, I've got no money.

 

I have tried the CCA route, to which their response was the claim! Are they obliged to give me just what is referred to in the POC or do they have to supply supporting documents if they expect to rely on them :) Thanks

 

No - have a look at

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

Which is the CPR Pt 31 which covers disclosure.

 

In terms of what they have to disclose CPR 31.14 specifies certain things that you are entitled to

 

HOWEVER CPR 31.6 creates a duty, in standard disclosure, to disclose documents on which they a party relies AND documents which adversely affect their case.

 

So the duty is much wider than 31.14

 

In terms of the production of statements showing how the sum arrived has been calculated as its' likely that they are going to support your case (if they show unlawful charges) or they will have to rely on as they show how the sum claimed has been arrived at I'd argue that they fall within the duty to disclose.

 

In civil proceedings the normal process is:-

1. Summons

2. Defence

3. Allocation to Track - Directions

4. Disclosure

5. Witness statements

6. Trial

 

In CCA cases it doesn't tend to work out that way because the either the

summons doesn't contain enough information or you don't have all of the documents to allow you to draft a proper defence. So you end up either doing a CPR Part 18 or a CPR 31.14 request at the very beginning to get you the info for the defence - once that's happened the standard process carries on so it goes to Allocation and then to standard disclosure etc .

 

Thats's the general idea, although of course there are sometimes hiccups along the way...

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Thanks for the info everyone.

 

Unfortunately I received a letter from Mint this morning, belatedly replying to my CCA request, but it includes a copy of the agreement and other docs. Having sent the CPR 31.14 request yesterday, I will probably receive another copy from the solicitors. Having looked through it, it looks as if it probably is enforeable :( - can someone tell me how to attach copies of the docs so you can all have a look.

 

If the agreement is enforeable, what do I do now, as I have sent the acknowledgement saying I will defend. If there is no defence, then my priority has to be to get the monthly payments as low as possible. I have previously sent a financial statement to both Mint and the solicitors which was based around the sort of monthly expenditure allowances that are acceptable to the Official Receiver in bankruptcy cases. It shows a deficit of income over expenditure of nearly £300 per month. Is it likely that the court would agree to token payments given the size of the debt.

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  • 2 weeks later...

Hi All,

 

I have now received a letter from the solicitors in response to my CPR 31.14 request saying they have applied to their clients for the documents. This is now well beyond the 7 days, but is there anything I need to do now, or do I just wait until the 26th day or so and submit an "embarrased" defence. Thanks :)

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Can I just check - have you filed the AoS

 

What you could do is write back to them and ask in the circumstances if they will agree to extend the time for filing the defence to 14 days after they reply to your CPR 31.14 request.

 

When is your defence due?

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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I've just checked - the defence is gonna be due around the 20th May...you've got time to see if they'll agree to extend the time.

 

I would do a letter asking for an extension - if they haven't agreed by the 16th - you can either file a holding defence or make an application to the court to extend the time for service of the defence - it'd probably be easiest to file a holding defence

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Can you email it...does their letter head have an email address on it or could you fax it

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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There is no email address, but I could fax it. Is a fax receipt acceptable confirmation of receipt? Thanks

 

Yes - personally I'd fax it and send a hard copy in the post

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Hi,

 

I am sat here trying to put together a suitable defence along the lines of;

 

1. Action started whilst claimant in default of a section 77/78 request so illegal.

2. Embarrassed and claim not particularised, no default notice ever issued/supplied.

3. Claimant claims compliance with Sections III & IV of the PACPD - and I don't think they have.

 

I can find lots of example defences to point 2, but I am struggling with points 1 & 3. I remember seeing at least one for point 1 but can't seem to locate it now and I am open to suggestions to point 3. Thanks

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Hi,

 

Does anyone have any thoughts on this as a defence;

 

 

In the XXXXXXX County Court

Claim number XXXXXX

 

Between

 

XXXXXXX - Claimant

 

and

 

XXXXXXXX - Defendant

 

Defence

1. I XXXXXXXXX of XXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by the claimant.

2. 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.

3. On the xx April 2009 I made a formal request to the claimant under sections 77 and 78 of the Consumer Credit Act 1974 for a true copy of the credit agreement and other documents as required by the act. The claimant became in default of this request on xx April 2009 rendering the agreement unenforceable whilst the default continued. I ask the court consider striking out the claimant’s case on the basis that there existed no legal right to action at the time the claim was made.

4. In the Particulars of Claim the claimant avers that they comply with Sections III & IV of the Pre-Action Conduct Practice Direction. Section III 6.1 states “before starting proceedings the parties should –

(2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.” and

Section III 7.1 states “Before starting proceedings –

 

(1) the claimant should set out the details of the matter in writing by sending a letter before claim to the defendant.”

The defendant explicitly denies that any letter before claim complying with Annexe A of Section IV was received, and furthermore, that no reasonable attempts to resolve the matter have been made by the claimant with or without ADR. The defendant invites the court to consider whether a claimant should be permitted to bring an action on the basis of “last resort” under the provisions of the Pre-Action Conduct Practice Direction despite having made no attempt to comply with the provisions thereof.

5. Notwithstanding 3 and 4 above, the Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

6. The claimant’s particulars of claim are very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16.

7. The claimant has issued proceedings in the Banbury County Court therefore according to practice direction 16 Para 7.3

7.3 Where a claim is based upon a written agreement

(1) 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.

8. The claimant has failed to include a copy of the written contract which he relies upon and it stands to reason that they are in breach of their obligations under the Practice Direction.

9. Further more the claimant offers no particulars in relation to how the sum claimed has been calculated and no statements are attached with the claim in support of the figures.

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

11. It is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

12. On xx April 2009 and again on the xx May 2009 I wrote to the claimant requesting information pursuant to the Civil Procedure Rules 31.14 and to date the claimant has failed to respond to my request.

13. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which 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).

14. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 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.

15. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate document.

16. In addition to the prescribed terms, any such agreements must be signed in the prescribed manner by both debtor and creditor. 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.

17. The claimant is therefore put to strict proof that such a compliant document exists.

18. It is explicitly 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.

19. Notwithstanding point 18, 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).

20. 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).

Conclusion

21. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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.

22. 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.

23. Alternatively, should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and will seek the courts permission to amend my statement of case accordingly.

Statement of Truth.

 

 

I XXXXX, The Defendant, believe the above statement to be true and factual

 

 

Signed ..................... Date...................

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Hi all,

 

I hope someone can give me some guidance as to what to do now.

 

I sent a reminder to my CPR 31.14 request, to which there was no reply, so I filed a defence as above to make sure I didn't miss the date. I very quickly received a letter from the court saying the case had been transferred to my local court and enclosing forms N150 which have to be returned by the 5th June. Two days later I also received a letter from the claimants solicitors enclosing the documents asked for.

 

I will try and attach all documents, and can only assume that they delayed sending them in the first place to see if I would submit a defence.

 

I would be really gratefull for any help or suggestions as to how to fill in the N150, and how to amend my defence (if there is one) now that the documents have been produced. The only thing which strikes me as odd is the Default is dated 3rd January whereas the POC refer to a default dated 3rd February.

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