Tesco Loan (Incasso)

[FightToTheEnd]

I particularly like the point "The claimant will say the Defendant's request is disproportionate to the issues in this matter and a number of documents requested are irrelevant" - Disproportionate in so much as they will no doubt go for CO if they get a CCJ and I could lose my home? Also, because I asked for something they feel is irrelevant they can ignore if completely??!!

 

They have also sent me a copy of the agreement and a blank DN (headed RBS rather than Tesco!), a printout of the account and a log of events showing the DN being issued but no mention of service type or postage.

 

They have also sent me letter headed "without prejudice save as to costs" asking me to make a payment offer in the next 14 days or they will request my defence be struke out.

 

As an aside, I do feel the DN is 1 day short if 1st class and 3 days short if second, no envelope unfortunately.

 

So what to do next? do i:

 

1. Ignore this and wait for the court hearing?

2. Make my offer of payment as before (as made to Tesco and Incasso who both ignored it)

3. Ammend my defence (can I do this?)

 

Help!!

[gh2008]

ok, defense filled, I presume I wait for the AQ now?

 

What was in your defence?

[gh2008]

see what you can dig up on DNs and their prescribed form and the service of documents.

 

What have you managed to come up with so far?

the DN it's form and content?

Pre-Action conduct?

Compliance with CPR in bringing the claim?

[FightToTheEnd]

What have you managed to come up with so far?

the DN it's form and content?

Pre-Action conduct?

Compliance with CPR in bringing the claim?

 

from what I can see, the DN is correct in it's form and content as it includes the prescribed paragraphs and is correctly headed etc.

 

By pre action protocols I assume you mean the issue of a default notice and then a letter of termination? This seems to be correct apart from:

 

the dn doesn't allow 14 clear days to remedy? 1st August was a saturday so if posted 1st class would be deemed served on Wednesday 5th. This leaves it 2 days short of allowing remedy BEFORE 18th August or 4 days short if posted 2nd class. Under the interpritations act (?) it is deemed posted 2nd class without a affidavit declared 1st class postage? It is then deemed served on the fourth WORKING day after postage making it deemed served on Friday 7th August.

 

What have I missed?

[gh2008]

from what I can see, the DN is correct in it's form and content as it includes the prescribed paragraphs and is correctly headed etc.

 

except there isn't one ;-)

only a screen print indicating their intention to issue one on 1st Aug.

By pre action protocols I assume you mean the issue of a default notice and then a letter of termination? This seems to be correct apart from:

see my post #40

 

the dn doesn't allow 14 clear days to remedy? 1st August was a saturday so if posted 1st class would be deemed served on Wednesday 5th. This leaves it 2 days short of allowing remedy BEFORE 18th August or 4 days short if posted 2nd class. Under the interpritations act (?) it is deemed posted 2nd class without a affidavit declared 1st class postage? It is then deemed served on the fourth WORKING day after postage making it deemed served on Friday 7th August.

 

Have they served a copy of the DN with the claim or their reply to your defence?

who knows what it actually said with respect to the alleged breach, rectification dates etc. Again all you have is a screen print showing an intention to issue, not the actual service of a document.

They say it was served on the 1st - so when did they issue it then and why is that date not apparent from the computer. How does the computer know when it was served on you ......

[FightToTheEnd]

Hmm, very helpful.

 

So, they haven't complied with pre-action protocols and they may not have a DN. I did actually try and negotiate a temporary reduced payment plan with both Tesco & Incasso while I look for a job (cureently self-employed with a quickly reducing workload!) but they ignored this completely.

 

So I just wait until the judge considers the AQ's? Or wait until they request a hearing for summary judgement and bring it up then?

 

This really is my first interaction with the court system and whilst I do understand and appreciate your motives for making me understand fully what I will rely on, I really do feel a touch overwhelmed and I'm certainly not able to study to be a solicitor in my spare time!!

[gh2008]

bearing in mind the payments made to Triton, was the arrears as detailed on the DN correct at time of issue.

 

Did their template DN attached to the reply give dates & figures that they say were on the alleged original (it might be worth removing the document you have posted on page 1 post #3)

 

What did you write in your defence?

[FightToTheEnd]

Ok, DN deleted

 

The DN they attached is a blank form, no names, accounts or amounts, also headed as Bank of Scotland and not Tesco.

 

DN was out £10 due to a cheque sent to Triton (which was cashed) being seemingly ignored!

 

Defence was the "standard" embarassed defence ie, I neither admit nor deny and put claimant to strict proof,

 

POC shows no legal cause of action and is insufficiently particularised,

 

no wriiten agreement with POC, didn't comply with CPR16, ie written contract, etc

 

no DN

 

I deny all allegations on the POC and do not know what case I have to answer.

 

etc etc

 

finishing with:

 

I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined above or until the court orders its compliance. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to ammend ny statment of case accordingly.

 

Sorry for the brief summary but I only have a printout of my defence and do not have it on a PC. Let me know if you want me to type it verbatim.

[FightToTheEnd]

Hi Guys (& gals!)

 

Back again and in need of more help!

 

Just to bring you all up to speed, I received at Judgement Order saying claimant was to amend their POC by 11/02 and I had to file an amended defence by 25/2. Anyway, heard nothing so phoned court this AM who advided they had filed and amended POC. Emailed Corbetts and they have emailed me thir submission and have promised hard copy in the post tonight.

 

They have attached a completely blank BofS DN (original was headed Tesco), the agreement which I believe is enforcable, and a printout of a log showing DN issued on 1.8.09.

 

So, drafting my defence and I'm a little stuck, I have a work in progress but would really appreciate some help please.

 

 

In the ******** County Court

Claim number *********

Between:

 

 

Tesco Personal Finance Limited - Claimant

 

 

**************** - Defendant

 

Amended Defence

1 I, ***************, am the defendant in this case and make the following statement as my defence to the claim made by Tesco Personal Finance.

2 Pursuant to the Order of District Judge ******** dated ??th January 2010, this amended defence replaces in its entirety the defence previously submitted on 10th December 2009.

 

The Default Notice

 

3. I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

4. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise.

1. Interpretation Act 1978, Section 7

This states:-

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

5. The Default Notice issued by the claimant was issued on 1st August 2009. In line with the Interpretations Act 1978, and in the absence of evidence to the contrary, this is deemed served by second class post being 4 working days after issue. The service date is therefore Friday 7th August 2009.

5. The fourteen days required for remedy would therefore expire on Friday 21st August 2009.

6. The Default Notice issued by the claimant required payment of the arrears before 18th August 2009 and is therefore invalid.

 

Edited February 23, 2010 by citizenB
removed font formatting commands

[costa12]

Hi FTTE,

 

Just subbing to your thread and reading with interest about your ongoing battle with Tesco/Incasso/Cobbetts. You have my full support in your dealings with this 'bunch'.

 

I'm in a similar situation. In a tussle with Cobbetts at the mo! My thread is http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

 

Costa

[FightToTheEnd]

Hi Costa,

 

I was reading your thread earlier and it seems to have taken a slightly different direction to mine, though I think I'm a few weeks ahead of you.

 

Best of luck anyway!

 

TBH, I don't really expect to win, just putting things off as long as I can. Desperatly looking for a job and them will either look to do an IVA or maybe sell the house - either way I just don't want Tesco getting a Charging Order anytime soon!

[gh2008]

They have attached a completely blank BofS DN (original was headed Tesco), the agreement which I believe is enforcable, and a printout of a log showing DN issued on 1.8.09.

 

Your defence needs to address each and every point in their new POC.

 

You also need to decide whether you're denying receiving a DN or that you did and it is faulty.

 

Seriously, relying on a faulty DN is mighty shaky. I know there have been cases recently where the claimants just file a witness statement from an employee stating that their system produces a DN and that they are sent 1st class with the correct figures & dates on and all that is accepted.

 

You will need to be 110% confident in what you are saying and why and know all the caselaw to back up your argument and the caselaw they may throw at your to break it.

 

If they have an enforceable agreement and the fact that only 2 payments were made you will have a struggle on your hands IMHO

 

Sorry being negative, but time is short and you need to know the risks. If they win they'll chuck another £5k on top (I presume this is a 5 figure sum being claimed.

[FightToTheEnd]

Hi GH,

 

Yes, I'm aware of the risks and really do expect to lose. Would you suggest just filing a form N9a(?) Admission - will this save me any costs and/or make a charging order more likely?

 

The amount is

 

All help appreciated, I'm REALLY out of my depth here and very short of time......

[gh2008]

If they can show the judge that you went to court knowing that you'd lose then they can hit you for the lot.

 

Wait for what others think

 

You're in for a very tough fight and with respect I'm not sure that you are prepared enough for it - sorry.

 

BUT JMHO and others may have seen something I've missed

 

gh

[FightToTheEnd]

So if I admitted now would this reduce their costs to just what has been accumulated to date - a few hundred pounds perhaps?

 

I was under the impression that it was much harder to defend a CO if you had admitted a debt?

 

I could really do with 3 or 4 months to sort myself out before they try for a CO - any chance?

[gh2008]

If you offer to pay by instalments and they are accepted and you pay them, then they should not be able to get a CO anyway National Debtline England & Wales | Debt Advice | Factsheet 15 Charging Orders In The County Court

 

The Court should look on you favourably if you have 'played fair'

 

The costs so far *could* be made against them as they did not ' follow the rules' (including not serving you with the updated POC!!!) - you could easily say that now they have sent the info they should have sent BEFORE they made a claim you will now make payments.

 

Again wait for advice - you could PM CitizenB for help

[FightToTheEnd]

Anyone else have an opinion on this? Would really appreciate some other points of view.

[gh2008]

Have you pm'd cB ? and you could try Priority1 as well

 

Both give very well thought out advice.

[gh2008]

I have pm'd them both for you

[citizenB]

Thanks Pipster,

 

The POC reads:

 

"The claimants claim is in respect of monies due persuant to an account maintained with the claimant.

 

and the amount the claimant claims:

 

£15,xxx.xx"

 

Default notice as follows:

 

 

Hmm, so you havent received a copy of the amended POC's This makes it very difficult for you to respond.

 

Are you able to scan in and post up a copy of the Default Notice, or are you confident that it is correct apart from the date ?

 

You will need to put them to strict proof of the method of postage. I dont suppose you have kept envelopes from other correspondence that would give some indication of how their mail is usually sent ?

 

Sadly, I would agree with gh that you are starting from a very weak position here.

 

I am going to ask a couple of other people to look in on you and see what they suggest.

[FightToTheEnd]

Hi, thanks for the help.

 

No I have now received a detailed POC and also a copy agreement, the only they dont have is a copy of the DN, just a computer log that it was sent.

 

The DN is fine apart from the dates, it was posted up previously but I was advised to take it down as they didn't seem to have a copy! Didn't keep the envelope but I think it would be fine if posted 1st class, issued 1/08/09 (saturday) for remedy before the 18th.

[FightToTheEnd]

Amended POC:

 

 

[PriorityOne]

I have to agree with previous posters here..... defending on the basis of a dodgy DN (in terms of when it was posted) is weak. The only avenues open to you as I see it are:

 

1) Claiming that you've not received a DN at all; thereby putting Tesco to strict proof of the original DN, what was on it and when it was sent.... although they do have computer log to show it was sent.

2) Disputing any unfair charges that may have been added to the account before and after termination; as the total on a subsequent CCJ would be incorrect

3) Looking into the "unfair relationship" angle

 

On the issue of a CO, all this does is to secure a debt.... meaning that, providing payments are maintained on a CCJ, there's no grounds for a creditor/DCA to go for a CO and if they try, you can defend on this basis.

[FightToTheEnd]

Thanks for the advice folks - I think I'll admit and try and reduce their costs where possible. There are no additional charges and I think denying the DN is also a touch weak and is likely to be ignored by a judge anyway?

 

Anyway, all the help is appreciated and the good news is I've been offered a job today!

[gh2008]

Great news about the job

 

Ok, I would write to the other side, tell them what has happened and offer them affordable but realistic repayment proposals.

 

Try and knock together an income and expenditure sheet.

 

Get an admission in with the same repayment proposals.

 

Once you've done that wait & then post up everything and anything you receive when you receive it so we have got enough time to assist.

 

Your aim is to avoid a CO - play the 'good guy' and the court will hopefully look favourably towards you and order repayment by instalments and then, as long as you keep to them you should be able to avoid the CO.

 

Good luck

 

Thanks for looking in cB and P1