MicroLend claim form received yesterday

[ror24]

Good morning all,

 

As a relative newbie to this forum any advice would be gratefully received.

 

I have received a claim form yesterday from MicroLend re a payday loan taken out at the end of September which was due for repayment at the end of October.

 

I have not received any default notice from them nor had the account been passed to a DCA. Can they go straight to a claim in the county court?

 

POC state that I am in default of the loan agreement.

 

Prior to this happening, I emailed them before the loan was due advising them of change in circumstances and that would not be able to repay the balance and offered a fair proposal of repayment. They were straight on the case saying it was unacceptable and that they would take it to court.

 

Whilst I do not dispute the debt, I am concerned that they can go straight to court without going down the DCA route or issuing a default notice first.

 

Any thoughts or advice?

[42man]

Can you post up the particulars of the claim ? but leave out any reference numbers, amounts, and specific dates....

[ror24]

Thanks for the reply. I will post details of POC when back home tonight.

[42man]

POC's ?

[42man]

The first thing to do is to issue a CPR31.14 in line with the POC's or if they are vague then CPR18...

[ror24]

POC as below:

 

"The defendant defaulted on a loan taken with our firm and refused repay the outstanding balance as per our terms and conditions agreed upon in the signed contract.

 

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 325.254% a year from 30/10/09 to 06/11/09 of #18.51 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.89%."

 

No further details on the POC. Submitted via Money Claim Online.

[42man]

Excellent, thank you...send this recorded delivery to the solicitors. Remember you have to acknowledge the claim form within 14 days of the date on the claim form, if you wish to defend all then state that, then you have a further 14+3 days in which to submit your defence...you will deny them that interest rate....see this here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/157091-can-anyone-help-defence.html#post1677413

 

I presume the agreement was 'regulated by the Consumer Credit Act 1974' ?

 

This is the CPR 31.14, you need to read this VERY carefully, and edit as required. This thread will help you too - 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 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 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

[ror24]

Thank you for your quick response. I will send direct to the claimant as there are no solicitors involved - claim form came direct from ML UK Ltd after getting nowhere in negotiations.

 

Will send this off today. I shall also complete acknowledgement of service today.

 

Thank you once again. Will post updates as and when received.

[42man]

Was it a 'regulated' agreement ?

[ror24]

Have checked the paperwork and it is a 'Credit Agreement Regulated by the CCA 1974.'

[42man]

Tut tut....no default and they have terminated your agreement without one.....(you can take the fact that they have issued court papers to be your termination)....this could be an unlawful recission of contract !!!

[42man]

Just keep a close eye on the timescales (don't miss them)....however give them a chance to get their (non existant ?) paperwork in reply to your CPR request....

[ror24]

So form a filing a defence perspective, will it depend on ML's response to the CPR letter I am sending?

[42man]

Yes it will....and if they don't then an embarrassed defence is the usual way to go....and then this MIGHT be an option for you.....please do spend some time reading around these forums so that you understand the CCA1974 - DCA Legal Successes - The Consumer Forums

 

You may like to have a read of this too, try your best to understand what is being said here - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[PlumFairy]

Good luck

 

Can't imagine that a judge would look too kindly on a company that issues papers less than 2 weeks after you defaulted ;-)

[ror24]

Thank you for your assistance and guidance so far. Acknowledgement of service has been submitted along with CPR letter being sent to claimant.

 

Will keep you posted on developments along the way.

[ror24]

Update: received back by recorded delivery correspondence from ML UK Ltd this morning.

 

They have provided a copy of the faxed signed agreement and a letter to me dated 30/10/09 notifying me of the default on this loan. Letter goes on to state that "page 2 (Section 5) clearly outlines that failure to pay the capital with its relevant interest in full constitutes defaulting, and court action will take place 7 days thereafter. Seeing as you have failed to pay the full outstanding balance or the interest on the capital you have defaulted".

 

They do, however, compliment me on cutting and pasting the CPR request from this forum!

 

When looking at the supposed notice of default from 30/10/09 at no point on this correspondence which I have NOT previously received until today, does it mention the term DEFAULT or NOTICE OF DEFAULT/DEFAULT NOTICE. Contents below (sums etc omitted):

 

30th October 2009

 

Loan Reference Number:

[42man]

Can you scan / photo the letter and post it up here (leave the dates on) but delete all other info that might identify you....

[42man]

If they have not made the default notice in the prescribed form then they are stuffed and as they have already terminated the agreement by their court action. Then they can't issue a new default notice as it would be complete fiction (you now no longer have any kind of agreement with them).....

[ror24]

Update: received back by recorded delivery correspondence from ML UK Ltd this morning.

 

They have provided a copy of the faxed signed agreement and a letter to me dated 30/10/09 notifying me of the default on this loan. Letter goes on to state that "page 2 (Section 5) clearly outlines that failure to pay the capital with its relevant interest in full constitutes defaulting, and court action will take place 7 days thereafter. Seeing as you have failed to pay the full outstanding balance or the interest on the capital you have defaulted".

 

They do, however, compliment me on cutting and pasting the CPR request from this forum!

 

When looking at the supposed notice of default from 30/10/09 at no point on this correspondence which I have NOT previously received until today, does it mention the term DEFAULT or NOTICE OF DEFAULT/DEFAULT NOTICE. Contents below (sums etc omitted):

 

30th October 2009

 

Loan Reference Number: XXXXX

 

We are writing to you in reference to the outstanding balance from your loan.

 

After several attempts to collect payment we are still yet to receive the initial balance of £XXX.XX.

 

You have 7 days to make payment in full either by phone or email.

 

If we do not receive the outstanding balance in full within the next 7 days legal proceedings will begin without further notice.

 

Please be aware this will incur further costs being added to your debt. Please refer to your contract with reference to all charges for missed payments.

 

To avoid a court hearing we urge you to contact us to agree on a mutually fair repayment plan immediately.

 

If you have already made payment please accept our apologies and contact us immediately on XXXX XXX XXXX.

 

Sincerely,

 

ML UK Ltd

 

 

No mention of default notice and am prepared to sign sworn affadavit this is the first written correspondence I have received from the claimant. Nothing received of this content before either by post or email.

 

The last emailed correspondence I received from ML was on 30/10 (same day) at 3.17pm:

 

Mr X,

 

We are being very patient waiting for your response.

 

You have received and read our email and chosen not to respond.

 

If you are not willing to pay £XXX.XX now and £XXX on 30th November 2009, let us know.

 

For all default notices we need to send you, you will be charged £12.00 each. You will be charged default interest of 0.89% per day, that’s £2.31 per day. You will be charged for all court fees and in addition be charged for all our solicitor fees too.

 

You have until the end of the day to pay £XXX into our bank account or force our hand to pass this to our solicitors to take you to court.

 

 

Yours sincerely,

 

Micro Lend UK

COLLECTIONS DEPARTMENT

Edited November 19, 2009 by ror24

[42man]

Oh dear.....this comes nowhere near to what is required under the Consumer Credit Act 1974, as they have initiated court action without providing a proper DN then i'd say it is an unlawful recission of contract. Hold on i'll find some useful info for you...

[42man]

Moreover they have not given you the minimum 14 days (let alone the poor DN) to remedy.....when was the court claim dated ?

[42man]

The new minimum period after which a creditor or owner may take action (in respect of the agreement after having issued a default notice) is now 14 days. It used to be only 7 days. Section 14 CCA 2006amends section 88 of the 1974 Act to create this extension.

 

Additionally, under s87, a creditor or owner must give the debtor or hirer a default notice in the prescribed form if he wishes to:

- terminate the agreement;

- demand earlier payment of a sum;

- recover possession of any goods or land;

- treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred; or to

- enforce any security

[42man]

Please have a read of these

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html

[ror24]

Claim form issue date 09/11/09