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Abbey Credit Card*restons*court Date Received*can Anyone Help With Defence


Cantona55
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First I like to say thanks to everyone who has taken the time to post info on all the treads I have read. I have learnt loads from all these cases and have helped get my up to the point that i'm at now.

 

I have gone through all the request credit agreement etc and have now recieved my court date through on 9th of November09. They have sent an agreement through. 4 page doc, with my signature + terms and conditions from when I applied for the card. The card was applied on 22nd of April 2004. I have no idea if the agreement can be pulled apart so was looking for any pointers on how to start to build a defence and whether the agreement looks water tight or not.

 

I will up-load the agreement asap, abbey have sent through all old statements....should I post any other info.

 

Thanks so much for any help

 

Jon

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Not sure what class of postage was used and have thrown away the envelope. Jon

 

Oh well....never mind.

 

Normally MBNA send out their Default Notices by 2nd class post which shortens the amnount of time to rectify the DN.

 

If you are curious about defective DN's have a read of this link - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

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BTW, Get a Subject Access Request off to Abbey Credit Card ASAP.

 

It will cost £10.00 (use a postal order to pay, do NOT sign the request and post using recorded Delivery)

 

Subject Request Letter here -

 

The Consumer Forums - Debt collectors

 

and amend to include a request for the Customer Information System report or "Comms Log" in your SAR.

 

 

 

Also, send Restons a CPR 31.14 letter. Read this letter VERY carefully and EDIT it as required and send this recorded delivery to Restons....and do NOT sign.

 

 

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 statements for the duration of the agreement*

 

* 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

 

 

 

Oh and have a read of this too - Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

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Hi thanks for replying. I have already sent this request and I have received the copy of the agreement and default notice plus all the copies of statement etc. They have sent everything pretty quickly. I will hopefully be able to post the POC tomz. Thanks, Jon

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I have had a blonde moment this is actually for a HFC beneficial credit card, not an abbey one. Had a funny five minutes when I set this up.

 

I have attached file with POC. Let me know if you need any more info. POC are-

The claiment claims payment of the overdue balance due from the defendent under a contract dated on or about 24/04/2004 in the sum of inclusive of interestto the date of this summons at 19.8% per annum from 17/04/09 to 12/05/2009.

 

Particulars a/c no-031840069145

 

Date Item Value

17/04/2009 Default Balance

17/04/2009 Collection charge

Post refrl Cr Nil

 

12/05/2009 Interest

Total:

 

Together with -

Interest pursuant to contract at the rate of pence per day

to the date of judgement or sooner payment.

 

Thanks, Jon

POC JJ.doc

Edited by Cantona55
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hi cantona,

i cant read the attachment but from the written POC, i wonder if a CPR18 rqst would be better given the vagueness? wonder if snoops agrees?

also u may wish to disguise the amounts a bit in case anyone is looking in. common practice im afraid.

 

if snoops agrees there is a template here courtesy of 42man for your perusal and amendment:

 

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

CPR 18 - REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

j. Proof that the debt has been securitised in the United Kingdom.

k. The termination notice.

 

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

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Thanks for replying, when looking in to whether to send a CPR 18 or CPR 31.14 I decided to send the CPR 18. As in the above document. They have now sent the T&C back, agreement( which is one page with very little information ) & Copy statements. I have now done the allocation questionaire and have a notice of application summary judgement through confirming alotted time and date of court appearance. Can anybody say if the agreement is standard or are there any discrepencies. Many thanks, Jon

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hi jon,

have u then put in a holding defence originally?

when is the SJ hearing?

have u received a bundle from the other side incl a Witness Statement in relation to the SJ?

it may be best to post up everything u have dun so far (CPR rqsts, defence,AQ, etc. obv minus the personals) so that anyone looking in can comment further.

 

im really no expert on CAs but from that, it looks like they have the original and the pages look congruent and part of the same doc so that may be a bit tricky for you to defend if it holds all of the prescribed terms. that said there may be issue with its layout (signature not at the end etc so prescribed terms not within the '4 corners' of the CA, etc) try linking the agreement to this thread to get some more help:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful-15.html

 

if the DN is sent 2nd class (if they cannot prove otherwise it will be deemed as sent 2nd class, therefore 4 days) i dont believe offers you the correct amount of time (14 days) to remedy. have a look at snoops links in post 10 (and the link within BRWs post) above to get that verified however.

 

all of that is of course highly relevant but ur main issue at the moment is sorting out and preparing for this SJ.

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CPR 18 is fine as you are asking for further information.

 

See what you get back from Restons, if it isn't what you want then use CPR31.14 to ask for disclosure and inspection of the original CCA.

 

Have a read of this informative post by IGNM on 31.14 -

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2111839.html

 

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I have sent the request for information and all they have responded with has been the copy of default notice and the 4 page credit agreement and terms and conditions. Plus a load of copy statements. Not sure why I would send another request for information off as what else would I need?

 

I have the SJ on 9th of November. I am not too worried but at the moment I have no idea what kind of case I would try to make in court.

 

Thanks, Jon

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Hi r&b, I have put in the defence, recieved witness statement. Which pretty much just says that they think that I dont have a hope of defending the claim. So now SJ 9th of November, dont know if anyone can take a look at the DN and CA. Thanks, Jon

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hi jon,

did u post in the link above for credit agreements?

 

can u post up the POC, the defence u submitted and the WS received, as that would make access easier for anyone trying to help out with the SJ.

in that regard, have a read thru here from post 81. altho that is for an o/draft andyorchs advice regarding the SJ procedure should help.

http://www.consumeractiongroup.co.uk/forum/legal-issues/192486-court-claim-o-draft-2.html

 

i believe u will be required to submit your own witness statement basically trashing theirs within 7 days of the hearing.

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The DN allows 17 days to rectify.

If the DN was posted 1st Class then it will be effective as it will give you the required 14 days.

However, if the DN was was posted 2nd class, it would be deemed ineffective as 4 working days are allowed for service to be deemed complete. You would receive the DN on Monday 30th March and only have 12 days to rectify NOT the 14 days granted by law.

 

You will need to put them to strict proof of postage as the class used.

 

In my opinion, the CCA looks enforceable as it contains the prescribed terms.

 

Have a look at these links which may help you understand the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

Consumer Credit Agreements

 

Finally, as r&b has stated, to oppose Restons application for Summary judgment, you will need to compose a Witness Statement that rebuts the claimants points.

 

Your WS must be filed to the courts and served to Restons at least 7 days before the hearing.

 

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As i'm a newbie i'm not sure how to check the enforcability of the agreement. I have looked through and can maybe see a couple of points that may be don't match up with the CCA 1974 but don't know whether to try to settle out of court if it looks like my agreement looks legit.

Any comment would be appreciated, thanks, Jon

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