Help Needed for Court Case Please

[loopy-loo]

Hi there,

 

I am hoping that someone may be able to give me some help/advice in responding to a county court claim that has been issued against me by CL Finance Ltd (Howard Cohen & Co. Solicitors) dated 23 Nov 2009.

 

I had a Debenhams Account Card which was taken out in August 1999 I applied for the card in store on a Debenhams store card application form. GE Capital Bank transferred this account card to a Gold Card Account . At no time since signing the store card application (1999) have I ever signed a credit agreement.

 

In May 2009 I fell into financial difficulty due to my company’s closure and am currently unemployed , I notified all of my creditors of my situation, Debenhams (Santander) did not respond to any of my requests to make reduced payments and have now assigned the account to CL Finance Ltd who informed me in their dated 20 November 2009, incidentally it arrived together with the county court papers which are dated 23 November 2009.

 

The particulars of the claim state:

 

“The Claimant’s claim is for the sum of £2,XXX being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and Santander Cards UK Limited under reference XXXXXXXX and assigned to the Claimant on the 18th November 2009 notice of which has been given to the Defendant.

 

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon Defendant pursuant to Section 87(1) of the Consumer Credit Act 1974.

 

Pursuant to clause 7 of the agreement, the Claimant also claims contractual interest at a rate of 26.478% per annum from the date of these proceedings to the date of judgment, or sooner payment accruing at a daily rate of 1.88%.”

 

I am unclear as to how I should proceed, but having read so many informative threads, I have noticed that the account number referred to in the claim differs from the paper work I received with the cards. They also refer to a default notice which I have not received.

 

I would really appreciate if anyone could give me any help or advice.

 

Thanks alot.

 

 

Edited December 1, 2009 by loopy-loo

[vjohn82]

Ok... stay calm... you're in good hands on this forum

 

Firstly, do you have access to a scanner? If not, and you can afford £10/£15, then I would recommend it.

 

Secondly, are there any documents attached to the Claim Form?

 

Thirdly, has this been allocated to your local court or Northampton?

[loopy-loo]

Hello,

 

Thanks for responding so quickly.

 

1. Yes, I have access to a scanner.

 

2. There are no other documents attached.

 

3. Northampton - County Court Bulk Centre.

[vjohn82]

Points in red

 

Hello,

 

Thanks for responding so quickly.

 

1. Yes, I have access to a scanner.

 

Ok... do you know how to blank out your name, address and account details and then upload to photobucket? If not we can help you do this.

 

Have a look at my thread (at the bottom in my signature) about how I have defended a claim and set out my documents. Then we can go from there.

2. There are no other documents attached.

 

Ok... this is in your favour as you may be able to submit something called an embarassed defence in the interim period... however we need to ensure we get all of the documents. There are certain procedures both parties have to follow: The Civil Procedure Rules.

 

Practice Direction 16 7.3 states:

 

Where a claim is based upon a written agreement:

(1) 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

PRACTICE DIRECTION – STATEMENTS OF CASE - Ministry of Justice

 

As you can see for yourself they have not complied with this direction.

 

3. Northampton - County Court Bulk Centre.

 

The next step should be that you indicate that you want to defend the claim and have the claim allocated to your local county court. Northampton is where companies send their claims with the hope that no-one will defend it.

[loopy-loo]

1. I should be able to blank out any personal details. Would you like me to scan the Claim Form, Notice of Assignment and two unsigned agreements? I haven't used the photo bucket up loader before so I may need some help with this.

I have been reading through your threads, you certainly know your stuff I’ve got an awful lot to learn.

2. This is good news.

3. Should I return the acknowledgment of service and tick boxes 1 and 3? Sorry as I am new to this will they automatically allocate the case to my local CC (Croydon)?

I really appreciate your help, thanks.

[vjohn82]

Scan up everything you have... this will help as it will be as if I was looking over your shoulder so to speak.

 

The acknowledgement of service - hmmm - never really had to deal with one of these but scan it up and I shall ask for advice elsewhere if I am unsure... but I am confident it is straight forward. You are basically indicating that you will be defending the claim.

 

Also... keep a diary of EVERY letter/phone call/research/activity related to defending this claim... this will be important when it comes to compiling a schedule of your costs.

[citizenB]

Righto, the date of issue on the claim form is 23rd November you say ?

 

in which case you need to adhere to the following timeline.

 

from date of issue to date of service = 5 days

then you get a further 14 days in which to acknowledge service. You will need to go online and using the password on the claim form advise the court whether you are going to defend all, or admit the claim.

 

if you are defending all then you will then get a further 14 days in which to submit your defence.

 

You MUST stick to this timescale or the opposition will get a judgement by default.

 

So from date of issue you have until the 12th December to acknowledge and then you will need to submit your defence by 26th December.

 

However, you will lose a few days because you will need to get it in before the Christmas holidays.

 

Once you have scanned in all your documents then we can advise you further.

[vjohn82]

citizenB to the rescue

[hungrybear]

Apparently direction 16 does not apply to Northampton.

 

Anyway, if you intend to defend this the you must get CPR requests off - 31.14 AND 18 to get all the information they intend to rely on in court. And as john said get a copy of the 'agreement' up on here so that you can get advice on enforceability.

[vjohn82]

Just discovered this hungrybear reg. 16.7.3... no wonder they sent it there!

[citizenB]

It still doesnt release them from their obligations to provide the information at the earliest opportunity.

 

The idea of CPR is to have all the i's dotted and t's crossed prior to trial.

 

If they dont have the documents to hand then they shouldnt be bringing the claim in the first place.

 

This is the letter you want to send to the solicitor. Read it carefully because you can only request information that is on the Particulars of claim.

 

 

 

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 [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

 

 

[hungrybear]

 

If they dont have the documents to hand then they shouldnt be bringing the claim in the first place.

 

 

 

Did you write that with a wry smile on your face? When have ANY of them ever had documents to hand? The usual reply to a CPR request (after thinking oh bum this one might turn up in court) is 'we have requested the documents you refer to from our client'

[loopy-loo]

Thank you all for your responses, sorry to get back to you so late in the day.

 

I have scanned the two agreements front and back pages, the assignment letter I received and the front page of the court claim form.

 

I think that I should defend all of the claim but will wait to hear what you think.

[vjohn82]

Thank you all for your responses, sorry to get back to you so late in the day.

 

I have scanned the two agreements front and back pages, the assignment letter I received and the front page of the court claim form.

 

I think that I should defend all of the claim but will wait to hear what you think.

 

Hi,

 

You need to upload them via photobucket, or other appropriate site, because they end up too small on our screens

 

It's quite simply to use really... once you get the hang of it... if you have blanked the docs off you are more than welcome to email them me and I will put them up for you... BUT... if you want to do this in the future it's always better to learn

[GhostDebt]

Hi Loopy loo

The bulk centre in Northampton is allowed to handle claims differently but they should still have to produce the original documents in court.

 

As suggested send the CPR request letters to HC and also ensure you submit the Acknowledgement of Service either by post or online (MCOL).

 

The way I consider it is if you admit it you get a CCJ, if you admit some of it you get a CCJ, if you defend in full you may or may not get a CCJ depending on how strong your case is.

 

With this lot you may have a good case, we need to see the documents really to comment.

 

Will pop back when you have managed to sort that out (hopefully John can help with this).

 

In the meantime their are plenty of threads about this lot, my own included. Your welcome to have a read.

 

Regards

[loopy-loo]

Hi all,

 

At last here's the documents, I hope I've done it right....

 

 

Edited December 7, 2009 by loopy-loo
Deleted agreements

[vjohn82]

Ok... should be fairly straightforward...

 

Forget the other documents for a second... the Notice of Assignment has to be done "under the hand of the assignor"

 

This means that the owner (creditor as defined by s.189 of the CCA1974) has to serve you notice that the account has been assigned.

 

You essentially put the Claimant to strict proof on this point.

 

I have to go to bed now... and haven't got the energy to look at the other documents... but well done... you worked out how to get them on here!

[loopy-loo]

I have submitted the acknowledgement of service online and have prepared the CPR 31.14 letter (requesting the agreement, assignment and default notice) I will be sending this tomorrow 07/07/09 by recorded delivery and will post copies of any documents received.

[hungrybear]

loo,

 

where should I start? Its all just a terrible terrible mess - for them:D

 

go with what john said AND

 

poc not fully particularized, no compliant agreement, no default notice, and as john said a less than ingenuous NOA shall we say

 

I suggest you send a CPR 18 letter as well as the 31.14 - just to make sure the slimy ******* (anti Semitic derision self moderated) cannot wriggle out of sending all documents.

 

If their case is based on those documents then let me put it in this analogy. Imagine they have an hammer and a nail and a piece of wood and their objective is to hit the nail into the piece of wood. In this case, the nail is made of chocolate....and it's a very hot day

 

The sooner the court service stops taking their money on any old crap and makes them prove they have even a 10% chance of winning before they file the better.

 

Loo, you have nothing to worry about

[GhostDebt]

Hi Loopy loo,

 

You should also request, statements so they can substantiate the amount claimed and also ask for a copy of the 'Deed of Assignment' in addition to the Notice of Assignment.

 

The documents you posted up, are these your own copies of documents? or ones that they have sent to you?.

 

Whilst I agree with vjohn82 post #17, there is some debate over whether or not the DCA can send it.

 

If I can find the info on this I will point it out.

 

Regards

[loopy-loo]

Hi Guys,

 

My latest statement concurs with the figures stated in the claim but should I request this info anyway and, should I include the request for the statements and the deed of assignment in the CPR 31.14 or under a separate cover?

 

The documents posted are my own copies, I received them at the time of receiving the cards.

 

I'm not sure where to find a copy of the CPR 18 letter perhaps someone could direct me on where I can find this.

 

Thanks so much.

 

Loopy-loo

[hungrybear]

Hi Loopy loo,

 

You should also request, statements so they can substantiate the amount claimed and also ask for a copy of the 'Deed of Assignment'(they will try to claim this is commercially sensitive usually... thank the lord for cpr 31.12) in addition to the Notice of Assignment. Hence why cpr 18 is a MUST

 

The documents you posted up, are these your own copies of documents? or ones that they have sent to you?.

 

Whilst I agree with vjohn82 post #17, there is some debate over whether or not the DCA can send it.No debate, they cannot. John and I and several others have been on this with HFO and separately HC for a while. Only the OC can send the NoA and so relinquish title - else I could write to you and say I now control you mortgage, thanks for the house

 

If I can find the info on this I will point it out.well I know 4% of what is needed and john knows about 13% (got to big him up he's a student teacher - which means his teachers teach him how to teach pupils how to learn to be taught) so that leaves you liable to find out 83%!

 

Regards

Hi ghosty, not having a dig by my comments, just find it easier and quicker to comment by appending for the benefit of loo. Having a dig at john is just a bonus I dont often get..

[hungrybear]

Hi Guys,

 

My latest statement concurs with the figures stated in the claim but should I request this info anyway YES and, should I include the request for the statements and the deed of assignment yes and no - yes but they will refuse hence the importance of cpr 18 in the CPR 31.14 or under a separate cover? if it's not mentioned directly in the poc then technically they dont have to send in response to 31.14 hence the need for 18

 

The documents posted are my own copies, I received them at the time of receiving the cards.well you can delete those for a start - NOW. The only admissible paperwork in this case comes form them not you

 

I'm not sure where to find a copy of the CPR 18 letter perhaps someone could direct me on where I can find this. There are lots in the threads. I have one on my pc at work. If you cannot find one by the morning post again and I'll stick up the one I have

 

Thanks so much.

 

Loopy-loo

 

31.14 and 18 go together in the same envelope by recorded delivery. A cover letter says please find enclosed... if you do not feel you need to supply any document under 31.14 then I refer you to the cpr 18 letter. If you assert that any documents are too commercially sensitive o disclose then you must say why and I'll use cpr 31.12 to get you to disclose anyway.....

 

Loo, remember this is court = gloves off and make their life as hard as possible. Take care

 

HB

Edited December 7, 2009 by hungrybear

[loopy-loo]

Thanks HB.

[hungrybear]

Thanks HB.

 

as in you like the info or you'll delete the offending or you want the cpr 18 in the morning?

 

hopefully at least the first two, the last one is optional and will cost about 15 seconds of my time - I think you're worth at least that loo.

 

you want the notice of assignment which really is more important than the deed.

 

If you want to know all about noa's see john's thread. - John WILL post the link in the morning or risk some bear wrath!