Sainsbury's Claim Form arrived, what next?

[Tonster]

Hi

 

Today I have received a claim form from Northampton court from Sainsbury's Bank for a credit card taken out in 1999. They sent a copy of a CCA without any prescribed terms and as such we have played letter ping pong for a while, me saying it's not enforceable and them saying nothing except asking for the money and then this arrives. What should I do next? I guess I defend the claim but what else? Ask for it to be moved to a court nearby and ask for copies of the documents they will use but how do I go about it?

 

Cheers

 

Tony

[yubnub]

hi,

 

Can you post up (or scan up) the Particulars of claim (poc) - removing/ommiting any identifying details.

 

It may be worth scanning up the CCA (also minus any personal details)

 

Some exp caggers will then be able to confirm things and advise in more detail.

 

Important things are to watch time frames / deadline for the court,

 

 

 

Regards,

 

Yub

[Brent-London]

hi,

 

Can you post up (or scan up) the Particulars of claim (poc) - removing/ommiting any identifying details.

 

It may be worth scanning up the CCA (also minus any personal details)

 

Some exp caggers will then be able to confirm things and advise in more detail.

 

Important things are to watch time frames / deadline for the court,

 

 

 

Regards,

 

Yub

 

 

Agreed.

 

But first thing you MUST do is file the "acknowledgment of service" so it gives you 28 days to lodge your defence in full.

 

Do it immediately (if you havent already!)

 

Brent

[supasnooper]

You'll need to complete the "Acknowledgment of Service" and state that you intend to defend all.

 

Do not tick the box "Do you intend to contest jurisdiction"

 

This can be done online, instructions should be with the N1

 

CPR request (See below) to Sainsbury's or whoever is indicated in the address box for sending documents.

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION CPR 18

 

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.

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. 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.

d.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).

e. 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.

f. 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.

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

h. 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.

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

 

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).

 

Send by Recorded Delivery.

[Brent-London]

 

XXXX (type, don't sign).

 

Send by Recorded Delivery.

 

 

I really don't see the necessity for "typing" your name instead of signing it. You need to sign the Court documents at the very least so if they were going to forge your signature then there are many ways they can do it.

 

I don't know where this came from but it seems to be very common here on CAG - and quite pointless and without foundation in my view.

 

In any event, the term "signature" in English law can mean "anything intended to authenticate a document" (even a cross, or a mark).

 

So probably the BEST way - if you are really concerned about them forging your signature - would be to SIGN but not in the way your normally do. For example, if you normally sign "Mr M Citizen" on this occasion just sign "Citizen". That way they have no idea what your "normal" signature looks like and you are still "signing" the document legally.

 

That way, if they DO copy that signature yo have PROOF of where they got it from.

[Tonster]

Ok, I've have now uploaded the copy CCA that they have sent which is a card request form devoid of any of the prescribed terms as far as I can see. They have also sent 8 pages headed 'Credit Card Agreement' which has my new address on and £12 charges etc but this basically just a word document or some such which they have typed up. The original CCA that they have sent which I have scanned is the one I signed back in 1999.

 

So, can you confirm that the CCA is unenforceable and today I will complete the Acknowledgment of service, I guess I can do this on-line? Then I will send off the CPR request tomorrow recorded. What then? Do I just wait? How do I get it switched to a local court? Or is it too early for that?

 

Tony

Sainsbury's CCA.pdf

POC - Sainsbury's.pdf

[Brent-London]

Is the balance owing over £5,000?

[Tonster]

Yes just over £6K

[Brent-London]

Ok then that means you can also claim costs as litigant in person. So keep track of all the time you spend on this (including research, drafting, Reading, copying, preparation etc) as you can claim £9.25 per hour. Plus of course all out of pockets like postage, printing, stationery etc. It all adds up!

 

Best to diarise the date your defence is due (28 days from service of the claim if you lodge the acknowledgment) so you know when the deadline is as you will need to lodge it even in the absence of a reply to your CPR request.

 

It will not be transferred to your local court until you lodge the defence but don't worry about that. It will happen automatically when you lodge it.

 

You might also want to consider an application to strike out their claim or summary judgement as the form is clearly non compliant. I would recommend this as a strategy without waiting for them to supply anything under your CPR request because nothing they can provide will correct the fact the signed document is unenforceable.

 

I'll post up the recent strike out application I used myself.

[Brent-London]

Here's the strikeout application I used. Obviously, you need to adapt it for your own case, and of course you will be asking that the "Claimant's particulars of claim" be struck out - not the defendants (Cabot were defendants in my case as they made a counter claim against me).

 

I suggest you lodge it AFTER your defence, so that the case is transferred to your local court for hearing.

 

To lodge an application yo need form N244 - available from the court service website. There is a £75 fee which is fully recoverable from the other side when you win.

 

 

 

 

CASE REF: XXXXXXX

 

 

 

IN THE CENTRAL LONDON COUNTY COURT

 

 

 

BETWEEN

 

 

 

 

BRENT LONDON

AND

CABOT FINANCIAL (UK) LIMITED

______________________________

APPLICATION TO STRIKE OUT

DEFENDANT’S COUNTER-CLAIM

______________________________

 

 

 

 

1.This application is made in accordance with the Civil Procedure Rules, Part 3.4 on the basis that the defendants counter claim has no realistic prospect of success (Rule 3.4) and in accordance with Practice Direction 3, part 1.7 which states that:

 

A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

 

2.In this case, the claimant maintains that because of the construction of a document produced by the defendant and upon which their case relies, namely, a Consumer Credit Agreement purportedly signed by the claimant, and exhibited as “WW3” in their counter-claim, their case must fail at law and it is appropriate that their case be struck out without a trial.

 

 

3.The defendant’s document, as a basis for enforcement of a debt under the Consumer Credit Act 1974 (“the Act”), is not valid at law for the following reasons:

 

(a)The Consumer Credit Agreement provided by the defendant and exhibited as “WW3” is legally unenforceable as it does not contain the required information under Schedule 6 of the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) (“the regulations”) which are required under sections 61(1)(a) and 127(3) as it then was, of the Act, which apply to agreements executed prior to 6th April 2007. Specifically lacking is:

 

·information as to the amount of credit (para. 3 of the regulations)

·information as to the interest rate (para. 4 of the regulations)

·information as to the repayment terms (para. 5 of the regulations)

 

(b)Further, section 61(1)(a) of the Consumer Credit Act 1974 and Schedule 6 of the 1983 regulations and the case law relied upon (see (f) below) make it clear that the required information must be included in the same document and not merely referred to in another document. Any reference to the “Terms and Conditions” attached in a separate document is of no legal effect for the purposes of enforceability as they are not signed by the debtor.

 

©The agreement is “improperly executed” in accordance with section 61(1) of the Consumer Credit Act, 1974 and it does not contain “all the prescribed terms of the agreement” in a document “signed by the debtor” in accordance with sections 61(1)(a) and 127(3) of Act.

 

(d)Section 127(3) of the Consumer Credit Act 1974 was abolished by the Consumer Credit Act 2006, however Schedule 3, Part 11© of the 2006 Act states that section 127(3) of the 1974 Act remains applicable to agreements entered into prior to the commencement of the 2006 Act. The commencement date of the 2006 Act was 6th April, 2007.

 

(e)The defendant has admitted that the agreement in question was entered into on XXXX (insert date). Section 127(3) of the Consumer Credit Act 1974 therefore applies to the agreement in question.

 

(f)The claimant will rely on the House of Lords case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003) in applying this interpretation of the law and regulations in relation to unenforceable consumer credit agreements and this agreement.

 

 

4.The court is therefore barred from issuing an enforcement order under the Consumer Credit Act 1974, in accordance with sections 65(1) and 127(3) as it then was, and the defendant’s claim must fail.

 

 

 

I believe the facts stated herein are true.

[Tonster]

Hi Brent

 

Ok, I will acknowledge the service on line now, that's ok isn't it? It doesn't need to be in writing? And then I will send off the CPR request and see what that shows up. Like you say though the whole defence I guess rests on the unenforceable agreement. I think I see what shows up in the 14 days they have just in case they have any suprises but I think not. I have been logging the time already re costs so glad to hear that.

 

Thanks again.

[Tonster]

AOS Submitted on line. CPR request letter printed and posted to Sainsbury's. Let's see what turns up next.

[Brent-London]

Good one - now its just a waiting game for a couple of weeks!

[Tonster]

Update:

 

Sainsbury's have sent me a letter on 19th November saying they are compiling the documents and will send them soon. However I will need to submit a defence next week but without all the docs what do I do next? Is it an 'embarressed defence'? I have a copy of the 'CCA' from some time ago without any of the prescribed terms but what should I be doing now?

 

Thanks

 

Tony

[Tonster]

Any advice would be greatly appreciated.

[Tonster]

Dear Experts

 

How about this for an embarrassed defence for this recent claim?

 

In the XXXXXXX County Court

Claim Number XXXXXXX

BetweenXxxxxxxxxxx Claimant

AndXxxxxxxxxxxxx Defendant

 

Defence

 

1. I xxxxxx of xxxxxxxxxxxx am the Defendant in this action and make the following statement as my Defence to the claim made by xxxxxxxxxxx.

 

2. Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Claimant’s Particulars of Claim are vague and refer to an agreement which is not attached to the claim; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the Civil Procedures Rules even allowing for the constraints of the bulk issue system.

 

4. No documents supporting the Particulars of Claim have been offered and despite a request to the Claimant for further information via CPR31.18 dated 08/11/09 and sent by recorded delivery, none has been forthcoming. The content of such documents namely, the Credit Agreement, Default Notice, Final Demand and any other documents the Claimant will rely on in Court are vital to this case, especially given that I am Litigant in Person, and as a result I cannot plead in defence to the claim.

 

5. Without clarification of the Claimant’s claim and provision of the documents requested, the Defendant is extremely disadvantaged and the Claimant’s claim appears without merit. Therefore the Defendant respectfully requests to be permitted to submit a fully particularised Defence should the Claimant provide copies of the original documents he will rely upon.

 

6. Further to the above 5 paragraphs, the Defendant is unable to plead effectively or at all. The Defendant is embarrassed

 

Thoughts please guys? I guess this is enough at this stage?

Edited November 27, 2009 by Tonster

[42man]

looks good....

 

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

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/233016-robinson-way-court-case.html#post2601991

[Tonster]

Update: Embarrassed defence submitted on-line today. I guess it is wait to hear from the court now?

[Tonster]

Update: Sainsbury's have failed to reply to the embarressed defence and as such the case is now stayed. Called the court today and they confirmed.

 

So, I have a question. Do I do anything now or just sit and wait now the case is stayed?

Edited January 8, 2010 by Tonster

[Tonster]

bump

[Tonster]

bump

[Tonster]

Further update :

 

Sent in embarrassed defence, they had 28+5 days to respond, they sent me details after 36 but by then the case was stayed, heard nothing further since.

[postggj]

As Its Stayed

 

Dont Pussy Foot About

 

Go For Strike Out For Non Compliance Of Requested Docs

[tastethediff]

Found your thread Tonster,

 

thanks

 

Have you applied for a strikeout yet?

[Tonster]

No, they produced some docs after the deadline (which were devoid of the required prescribed terms) but by this time the case was stayed.

 

As I have a number of these (14) on the go at the moment I decided to leave it as stayed for now!