Summons recieved

[greatburdon]

I have now received a summons relating to an alleged credit card debt. All that I have had in response to my CCA request is a blank form and reams of terms and conditions which may or maynot be applicable.

 

http://i597.photobucket.com/albums/tt51/greatburdon/Hsbcsummons.jpg

 

In the POC it refers to a default notice that I am unware of.

 

As this is my first journey could I ask what steps I now need to take?

 

Greatburdon

[42man]

ok.....so they are default of a request for your agreement.....firstly you need to acknowledge receipt of the claim within 14 days of the date on the claim form...once you state that you are defending all, you get a further 14+3 days in which to submit your defence....

 

You need to read the letter below very carefully and EDIT accordingly...Send this recorded to the solicitors - this thread will help you please read it - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

 

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 made under the Consumer Credit Act 1974 for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored (all they sent you was a blank agreement - so they HAVE ignored your original request)

 

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*

 

4 [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

[cymruambyth]

If I can just add to 42man's post do not sign your letter.

[greatburdon]

Can i just clarify that I acknowledge service now (which I have just completed online -- so that is done!). Do i wait to file the defence when/if I get a response to my cpr 31.14 request?

 

GB

Edited October 7, 2009 by greatburdon

[42man]

You must acknowledge service within 14 days of the date on the claim form....you can do this now online, if you wish to defend all then state that, but at this stage it is too early to submit a defence, (you get a further 14+3 days in which to submit your defence) they should comply with the CPR if they don't then you can potentially apply for a strikeout....if they don't supply any information with regard to the CPR, then an embarrassed defence is usually the way to go....examples here -

 

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

 

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

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/144007-help-amex-no-cca-3.html

[AndyOrch]

Also to add to 42mans advice you can tag this on to the defence as S69 interest is a def no no

 

It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

 

 

Regards

 

Andy

[greatburdon]

Thanks guys -- Much appreciated.

[greatburdon]

Received the following in response to my CPR31.14 request. This is the first time I have been informed that 'they had not been able to locate it' (the agreement that is), I assume as per their last sentence I need to file a defence at court.

 

http://i597.photobucket.com/albums/t...DGsolic1-1.jpg

 

http://i597.photobucket.com/albums/t...n/DGsolic2.jpg

 

Could someone please walk me through what I need to do to file a defence.

 

Thanks

gb

[AndyOrch]

Hi GB

 

You just need to submit a short defence online via MCOL if its CCBC.

They have provided all the ammo in their letter above as to why you need to defend this claim

Ill post a short one up for you in a tick.

 

Regards

 

Andy;)

[greatburdon]

Thanks Andy .. What is CCBC? (I take it it's not childrens TV)

[AndyOrch]

Thanks Andy .. What is CCBC? (I take it it's not childrens TV)

Northampton County Court Bulk

 

Andy

[AndyOrch]

xxxxxxxxxxx- Claimant

 

and

 

- Defendant

 

 

 

DEFENCE

 

1) The claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. Further, no documents supporting the claim in the particulars have been offered. I have made a request for disclosure, pursuant to Part 31 of the Rules, to the Claimant to allow me to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

2) It is Not admitted that I signed any agreement with XXXX . If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

3) It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

 

4) I have no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

 

5) Further and in the alternative it is not admitted that the sum claimed is lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how it is asserted that the sum claimed is contractually owing.

 

6) Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

 

7) In view of the above, it is denied that I am indebted to the Claimant as alleged or at all.

 

Statement of Truth

I believe that the facts stated in this defence are true.

Edited October 27, 2009 by Andyorch

[greatburdon]

Many thanks Andy, I will go to the on-line thingy and submit this defence. What is the timeframe after that please?

 

Gb

[greatburdon]

Vint1954 kindly posted this on my HSBC thread -- If they do not have a signed agreement, then the court will not be able to enforce the agreement under s127(3) and you can ask for a strike out under s142.

 

You need to urgently get some more advice from the legal forum by way of a new thread there, in order to get proper advice in filing your defence

 

I have submitted the defence as per andyorch's suggestion (post #12).

 

Would a strike-out application still be possible and is it the way forward?

 

Gb

[AndyOrch]

Once a defence as been submitted no! IMHO that process is a tad risky and can back fire for numerous reasons have a read of the following thread:-

 

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

 

 

Regards

 

Andy

[greatburdon]

Thanks Andy ... Well defence has been lodged, now I guess I just wait for a court date?

[greatburdon]

Can someone please let me know what the next step is please i.e. what am I waiting for next?

 

gb

[AndyOrch]

You will receive notification from Northampton that your defence as been received and forwarded to the Claimant.They have 28 days to respond if they fail the claim will be stayed.If the respond you will receive an AQ and the case will be transfered to your local CC.

 

Regards

 

Andy

[greatburdon]

Thanks andy

[greatburdon]

The 28 days have now lapsed and I have heard nothing further. I assume the case is now stayed? What exactly does this mean and is there anything I should do now? I assume it is suspended and can be resurrected, is there anyway of having the stay removed?

 

 

greatburdon

Edited December 7, 2009 by greatburdon

[AndyOrch]

Hi GB

 

You or the Claimant can make application to lift the stay (normally the Claimant) if you wish to proceed.

 

Andy

[greatburdon]

Thanks again Andy .... is there a time limit for lifting the stay or can the claimant have another go whenever they feel like it?

[AndyOrch]

Normally there is a period specified on the order if you wish to set a side or vary, but in most cases that will have passed by the time you receive the order.I have known stays be lifted 12 months later when the Claimant feels more confident to proceed however it is encouraged that they shouldn't leave it that long and need good reason for the delay.

 

Regards

 

Andy