SB100 v HFC - is this default compliant? Court/Restons ***WON***

[SB100]

As I'm farly sure it isn't.... irresepective of whether the figures include charges etc the format doesn't seem correct at all.

 

 

[image deleted]

 

 

Any opinions would be appreciated. Thanks

Edited June 25, 2009 by SB100

[SB100]

Anybody? They've just issued proceedings through Restons- summons arrived this morning.

[GamekeeperToPoacher]

Hi

 

I believe that the DN is non compliant as it should be 14 working days plus time for service.

 

Did you keep the envelope as they should allow 2 days for 1st class and 4 days for second

 

 

Someone hopefully will be along to confirm soon.

 

WRT the summons return it saying that you intend to defend.

 

It would be useful if you posted the POC minus personal details.

 

 

GK

[SB100]

Thanks GK. I have the same opinion regarding the DN, it came via UK Post which I believe is considered second class.

 

From information on various other threads I believe there may be a technical issue with the wording and underline / bold on the DN as well?

 

The DN includes various £12 default fees- is this relevant? I won't be able to scan the summons until (hopefully) later today. We're going away for a week on Tuesday so the timing isn't great...

[GamekeeperToPoacher]

Hi Sb,

 

In that case then I would say definitely dodgy.

 

Now my understanding is that that they are only allowed to claim for the amount that they have put down as arrears and not the whole claim BUT if the amount claimed is wrong then they have forfeited their rights to any amount. It is deemed that they have gifted you the money - maybe they want to start a financial version of Freecycle?

 

If I am not correct I hope that someone more experienced will come along and point it out.

 

GK

Edited May 24, 2009 by GamekeeperToPoacher
Spelling

[SB100]

Yep, thats my understanding too. Lets just hope we're right eh I could do with some help with my defence if someone would be so kind- I don't have a clue where to start!

[GamekeeperToPoacher]

When does you defence have to be in?

 

I am sorry if it is above but I am relying on memory at prpesent as I am trying to help so many and later today I am going out on my bike (Kawasaki:p)

 

GK

[cashins]

The DN includes various £12 default fees- is this relevant? I won't be able to scan the summons until (hopefully) later today. We're going away for a week on Tuesday so the timing isn't great...

 

Yep, you may also find they have included a charge for the DN notice as well. If the total amount of these is a significant ammount in relation to the DN ammount - they have a problem.

 

Wording should be:

 

IF YOU DO NOT TAKE THE.......

 

Seem to recall the wording and underline must be exact.

 

david

[SB100]

It was issued on 22/5, and says to assume 5 days for service- so would that be the 27th or are bank hols and weekends excluded? I then have 14 days to respond, or 28 if I extend.

[citizenB]

If it was issued on the 22/5 then service is 5 days ie 27/5. You MUST acknowledge service within 14 days = 10 June you then get a further 14 days to submit your defence .

 

No, bank holidays and weekends arent excluded.

 

HTH

 

If you let us know what the POC says then I am sure someone will be able to help.

[SB100]

will post tomorrow... thanks again

[SB100]

Ok, here's the summons. It includes a 'collection charge' of £1175 as you can see, which equates about 15% of the alleged balance being added!

 

[SB100]

As per amended title. This seems to be one of the quietest sub-forums, not sure where else I can put it though!

 

I've filed the acknowledgment of service but the clock's ticking and I need to do my defence- but don't have too much idea what I'm doing

[42man]

Moving to Legal Forums....give me a few minutes and i'll assist...

[SB100]

Thanks for that, I'm very grateful.

 

Just reading the stuff on CPR 31.14 to fire at them.

[42man]

Send this ASAP to Restons.....recorded delivery, BUT it will need reading very carefully and editing......

 

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

[42man]

Have a look through these (and you need to deny them that rate of interest in their claim) e.g. - The Defendant denies the Claimant is entitled to interest at a rate of XXXX%

 

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/157973-welcome-fianance-court-case-4.html#post1704890

 

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

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/156156-help-mum-being-taken.html#post1665130

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/144007-help-amex-no-cca-3.html#post1549360

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/121774-lloyds-tsb-credit-card-5.html#post1461198

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/126111-cl-finance-ltd-recieved-4.html#post1350484

[42man]

Please stick to the deadlines too....

[SB100]

Looks like I have a bit of reading to do today Thanks for your help.

[SB100]

Looking at the Particulars of Claim, they are being pretty vague. So far I've edited the letter as follows...

 

CPR 31.14 Request

 

On 26/05/09 I received the Claim Form in this case issued by you out of the Northampton 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.

 

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 the following documents 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 originals 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 documents 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

[supasnooper]

As 42man has suggested, you will need to deny them the s69 interest they are claiming.

 

You may wish to add this -

 

You are NOT allowed to add s69 interest to a claim based on a regulated agreement.

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database

 

Section 2 (3)

The Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

[SB100]

Do I do this in a separate letter or tag it to the CPR?

[citizenB]

That bit that SS has put in about the s69 should go on to the claim form when you submit your defence.

 

My math takes you to the 23/24th of June as the final day for submitting of your defence.

 

You get

 

From date of services in your case

 

22 May 2009 + 5 = 27 May + 14 days to acknowledge = 10 June +14 days to submit defence = 24 June 2009.

 

So you have a bit of time in hand.

[the_shadow]

Couple of things...

Default Notice

I see mentioned in an earlier post about 14 working days for the Default notice, please not its 14 calendar days, not working days. That said if its not been sent by royal mail first class its deemed to be 2nd class and 4 working days for service.

 

Sent Thursday 15th means deemed served on Tues 21st. 14 days starts from the day after service according to regs so remedy date should have been Weds 6th May to give 14 clear days.

 

POC

Thats a hefty collection charge and one to challange in the defence, strict proof of costs.

 

S.

[SB100]

Does my CPR request look ok? I'd like to get it in the post today if poss. Thanks again everyone.