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Hungryforinfo

Particulars of claim - Are these vague?

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Amex have decided to issue a court claim against me but I have never received a default notice. Is proof of a default notice being served a requirement in order for them to issue court proceedings? If that is the case presumably I could ask them for proof of delivery of the default notice.

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Guest Old_andrew2018

What ever you decide you must take the claim seriously, IMHO Amex will state the notice was posted.

 

Andy

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Amex have decided to issue a court claim against me but I have never received a default notice. Is proof of a default notice being served a requirement in order for them to issue court proceedings? If that is the case presumably I could ask them for proof of delivery of the default notice.

 

send them a CCA request to confirm they have a copy of the original. dont wait until court...if they have it, you dont have a leg to stand on, unless it's full of errors

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They sent me an application form masquerading as an agreement. There are flaws in rpescribed terms. I'm just going through the 'agreement' to identify what else is wrong with it.

 

For the purposes of this thread I was hoping if they hadn't sent me a default notice, or if they can't prove they sent me a default notice this would help my case.

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Can somebody help please? I have been served notice of a claim by Amex. I have just found a thread which provides some information re using CPR31.14 and it includes some text that can be used in the CPR request re the 'particulars of claim' which is helpful because I want to see the original credit agreement document plus terms and conditions. However the example letter used on another thread lists items that can be included in a CPR request and mentions to delete them if not mentioned in the particulars of claim. PROBLEM - The agreement isn't specifically mentioned in the particulars of claim other than by implication (the claim is for money due for card services!)! Does that mean I can't ask to inspect the documenton at their premises or ask them to produce it in court (an inspection would be prefered)?

 

The particulars of claim states: Money due for Credit Card service supplied (credit card no. xxx etc) at the Defendant's request in statements rendered culmintaing (Date).

 

The letter from the other thread is pasted in below (note I would like to visit their premises to see the original agreement and default notice which I have never received. I don't think it has been assigned):

--------------------------------------------------------------------------

LETTER FROM THREAD Re: Claim form Received today

 

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

--------------------------------------------------------------------------

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Bump - Grateful for help on my defense which has to be filed in just over a week. I've never done this before and I think I may have missed the opportunity to request documents under the CPR. It would have been nice if teh claim had gone to the correct address.

 

I have attached teh claim and the so called agreement.

So called agreement for CAG july09.pdf

Claim form CAG version2 july09.pdf

Edited by Hungryforinfo
Updating

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Hi

Need a bit more info first. Have you applied for a copy of your credit agreement?

 

D

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Yes. What I got back was the application form attached in this thread, together with a covering letter stating 'Please find enclosed a copy of the agreement in reference to the above account. Please refer to the statements issued prior to cancellation for validation of your debt.'.

 

I haven't received a default notice or any other correspondence since the gareement was sent. Neither have I written back becuase I asked for a copy of all teh documentes mentioned in the agreement which were not sent. There are omissions such as the prescribed terms.

 

I am not sure if Amex have signed the agreement I have attached. It looks like some sort of stamp.

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Sorry

Edited by DandD
Wrong forum

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Well that is a beauty of a claim - I'll have a proper look at some point tomorrow - a couple of immediate thoughts they can't claim a collection charge neither can they claim statutory interest

 

You could really do with it being posted in the legal section


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 taking the time to take a look at the claim. I hope you can find time tomorrow (today now!) to come back to me particularly with regards to th ecomments 'they can't claim a collection charge neither can they claim statutory interest!'

 

Just for awareness I am mindful of a separarte thread on a more fundamental issue refarding their right to make their claim in the first place as this depends in part on their ownership of the debt. It seems that there is more than a reasonable probability that Amex have sold off the debt and therefore do not have the legal right to ask for payment. There is a separate thread on this issue. If time allows, I would love to ask them to prove they own the debt (appears unlikely given the information I have received to-date).

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Thread now moved to legal issues forum.


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Its pretty obvious what they are going to try and pull,

They have an application form and no executed agreement. But they'll try to convince the judge that you owe money by producing statements.

Your arguments need to press home the fact that no agreement exists between you.

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2 posts ago there was a comment about this thread going to the legal section. Do I need to do anything as when I went to the legal section expecting to find this thread there I couldn't find it.

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Youre in legal section now

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I am attaching a couple of other docs in the hope I can get some help with my defense particularly with appropriate wordings or templates. The docs I am attaching here are a default notice sent to me about a month before I sent a CCA request so teh default notice sneaked in under the wire. The other document is a termination notice.

 

I could still use some help with knowing have I missed the boat on asking for documents using the CPR (I think it is) as I have to submit my defense by 28thJuly inclusive at the latest. I am hoping I can do this all online.

CAncellation of account notice Amex june2008 CAG.pdf

Default notice Amex CAG version june08.pdf

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Whats the date on the DN? we need to see how long you actually had to remedy

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OK Sorry, I didnt make myself clear,

The DN was dated 13th June 2008, when did you receive it? was it posted first or second class? what was the date required to rectify the arrears?

If they didnt give you 14 days, then the DN is faulty for one.

They have already terminated the account, so I trust they havent sent any further DN out after termination.

It'll help your case if you get everything in chronological order, IE. on XXXX date they sent DN, on XXXX I sent CCA request, etc etc.

Youre going to have to get organised so you can tackle amex.

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I don't have a date of receipt at hand and will check to see if I have the envelope the DN was sent in in order to see when it was posted and if it was first or second class if it is needed. There is no speciifc date for rectifying the breach. However, the notice states words to the effect that 'to remedy this breach payment is to be received within 14 calender days from the date of the default notice'. Does this make the default notice invalid and if so what legislation can I cross reference this too?

 

There has not been any further DN's received.

 

As suggested I will compile the information I have in correspondence with Amex which isn't much.

 

I am attaching a copy of the DN with this post.

Default notice Amex CAG version june08.pdf

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'Does this make the default notice invalid and if so what legislation can I cross reference this too?'

 

Thats why its important to know when they posted it and when you received etc, so you got the full 14 days as quoted.

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In this case it doesn't matter too much when the DN was posted as it doesn't specify an actual date to rectify, but says " ... must be received within fourteen calendar days from the date of this Default Notice", thereby not allowing any days for service.

 

So defective DN;

 

and

 

Unenforceable agreement as it is an application form containing no prescribed terms.

 

Cheers

Rob

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Rob,

 

Thanks so much for the information. I could use some help in knowing how I present these deficiencies in my defence i.e. suggested wordings (a template anywhere?) presumably with a reference to the appropriate regulation that is breached.

 

 

With regard to the prescribed terms, I have read elsewhere that creditors may try and present a reconstructed agreement and dupe the court into believing they are a true copy. I was hoping to to mitigate against this by using the CPR (I am not familiar with the procedures at the moment) to get visability of the original document at the Amex offices pre the court case. I am not sure if I have to do this before my defense is submitted next week.

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Rob,

 

Thanks so much for the information. I could use some help in knowing how I present these deficiencies in my defence i.e. suggested wordings (a template anywhere?) presumably with a reference to the appropriate regulation that is breached.

 

 

With regard to the prescribed terms, I have read elsewhere that creditors may try and present a reconstructed agreement and dupe the court into believing they are a true copy. I was hoping to to mitigate against this by using the CPR (I am not familiar with the procedures at the moment) to get visability of the original document at the Amex offices pre the court case. I am not sure if I have to do this before my defense is submitted next week.

 

There are lots of threads on the forums with good winnable defences in them, you could have a look in the successes forum;

DCA Legal Successes - The Consumer Forums

 

My own particular winning thread (only made possible by other CAGgers help, especially pt2537), which is based on similar circumstances to your own, and may contain exactly what you are looking for is here;

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

 

Cheers

Rob

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I've just seen your reply. Thanks so much I'll have a hunt.

 

If anyone knows what I can do as far as my defense is concerned on the points raised by I've Got No Money's comment in post 6 I would like to hear about it. Post 6 comment was 'a couple of immediate thoughts they can't claim a collection charge neither can they claim statutory interest'

 

My comment - Does this invalidate their claim and can I cross reference to any regulation which confirms they can't charge a collection charge or statutory interest?

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