Storecard Claim served - what now? ** SUCCESS**

[Pumpkinhead]

Both my husband and I have both been served claims for the same storecard debt. Is this right? Should both of us reply or just one of us?

 

The debt is under £1k but we just can't afford to pay it back right now.

 

I previously requested the CCA and as it looks to be OK to me I resumed monthly payments. However with ever deepening financial difficulties I decided to write to all my creditors (only those I believe I have valid agreements with) asking them to accept lower payments etc and enclosed a personal budget sheet (from this site). Everyone accepted except for this storecard with a local company (not part of big group). The sent us a DN (again appears valid) and terminated account and followed all correct procedures.

 

They rejected my offer of reduced monthly payments which I have sent twice now.

 

What can I do now? Could I offer to settle the claim by paying a part of the amount owing as a final settlement or is it too late for that?

 

Any advice welcome.

[gh2008]

can't comment on whether they are right to issue 2 claims for the same thing - hopefully someone else will be along to comment on that.

 

IMO you have a few options

1. pay it off in full - no CCJ but you got to find the money

2. make a sensible full & final 'without prejudice save as to costs' offer

2. admit to claim and ask to pay by instalments - you get a ccj against and in the end the court will generally agree affordable monthly instalments

3. defend the claim - worst result same as no.2 (+ a little more in costs) best result is they give up or you win & no CCJ

 

It might be still worth you asking them for all the paperwork to make sure they send you the same docs again and that they really are without error, as even small errors can mean that you have to pay less as 'compensation' for the mistakes

[GhostDebt]

Was the card in joint names?

I think you need to Acknowledge service and send the CPR request for information letter to the claimant to see what documents they have.

 

Can you post up the DN and agreement for others to comment on. (minus personal info).

 

Is it the original creditor taking you to court or is it an assigned debt?

[Pumpkinhead]

Yes, the card was in joint names and it is the original creditor who is taking us to court.

 

I will try and post up a copy of the agreement etc. but have never cracked using photobucket.

 

I have also just realised that the DN is technically invalid as the date they gave as payment to be received by is 1 day short. Do you think I should point this out as a way of getting them to withdraw claim?

Edited January 16, 2010 by Pumpkinhead

[GhostDebt]

The consequence of an invalid DN is quite well laid out.

 

See post #59 by CitizenB here

http://www.consumeractiongroup.co.uk/forum/legal-issues/215388-response-howard-cohen-santander-3.html

[gh2008]

and some more info on DN dates http://www.consumeractiongroup.co.uk/forum/general-debt-issues/179944-default-notice-period-7-a.html

[gh2008]

* note that from 19th December 2006 it is 14 days

[Pumpkinhead]

Many thanks Ghostdebt and GH2008.

 

I have sent off my acknowledgement of service advising that we intend to defend the whole claim they've made. Have also sent CPR 31.14 request to their legal people to see if anything they send differs from what I have already.

 

Whilst I am confident the DN is invalid on dates, another matter has come to my attention.

 

When they sent me the DN I actually paid the arrears within the time they specified, however I now see from the POC with the claim that they still terminated the agreement the very next day after I had made my payment to the store (by telephone and I have ref number for transaction). I didn't receive any letters clearly stating that the account had been terminated, only a sentence contained in a letter thanking me for my payment saying that as I had broken the T&Cs my card was no longer valid and should be destroyed.

 

Would it go against me if I have sent them a letter previously asking them to accept reduce payments?

 

Does this look like a case where I could defend my claim by saying that by their terminating the account THEY in actual fact have ended the agreement so I don't now owe them anything???

 

I've also seen a reference on some other posts relating to unlawful charges being included in arrears totals. What are these unlawful charges and how can I find out if they've levied any against me?

Edited January 18, 2010 by Pumpkinhead

[gh2008]

OMG !!!!

 

oh dear they haven't quite played by the rules have they.

 

If you do what they ask on a DN then the breach has to be treated as though it had never happened.

 

They have unlawfully rescinded the agreement.

 

AFAIK even with a valid agreement, as they have unlawfully terminated they are only allowed to claim the arrears at termination. Which = nothing!

 

There are threads about where people have counter claimed for all the payments & interest back but this is unknown territory for me.

 

You would seem to be in a very powerful position

[GhostDebt]

If you have proof that the required payment was made within the required timescale, then I think you are in a good position to argue your case.

Can you double check and confirm this and then we can see if we can get some other help onboard.

 

Regards

[Pumpkinhead]

It just keeps getting better.

 

I previously asked these jokers to accept a reduced monthly payment due to my being very hard up at present but out of 6 creditors I approached they were the only ones to say no and for the smallest amount owing.

 

Now they have decided to chuck their dollies out of the pram, I have decided they deserve all that is coming.

 

On closer inspection of the DN and having spent most of today reading through other relevant threads, I have identified more problems with it.

 

Firstly they've not given me enough days in which to remedy the breach.

 

Second, the document does not have their Co Registration Number or Reg Address or Place of Registration.

 

Also I see it is a copyright form they've used and I have half a mind to contact the people owning the copyright to see if they have given the creditor permission to use it.

 

Moving on to review the POC again (not via the Northampton Bulk Centre) I notice it states that "the defendant failed to pay the arrears and the claimant terminated the agreement on the next day (date given in POC) . The best bit is I paid the arrears two days before hand by ringing their store and have the reference number they gave me as well as transaction showing on my bank statement. I also have a letter from the store thanking me for my payment!!!!!!! So the POC are incorrect.

 

And of course, last but not least they have terminated the account and thereby unlawfully rescinded the agreement.

 

I've sent off asking for the usual CPR31.14 stuff and put in my AoS.

 

Do you think I should just file my defence when the time comes or write to the solicitors beforehand dropping my many bombshells???? I would wait to write to them until I've had the CPR stuff back.

 

Should I also have a go at claiming damages from them and getting them to remove the default?

 

Comments welcome.

 

I will continue reading the Default Notice threads tomorrow - they've been a great help and I'm a fast learner.

 

I've been going through the CCA process since Feb last year because I have been so hard up financially. I can honestly say that after having read so much on this forum and found out how these finance companies work (plus the bankers bonus issues, but that is another of my hobby horses) I wouldn't give them the money now even if I had it.

[gh2008]

Well done

 

Well done for doing some homework and really getting somewhere

 

I think you probably have an excellent case for a counterclaim - yes, more reading for you, you've got the right Keywords

 

I think this one would be a good test of PT's thread http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html where he basically advocates not even putting the defence in until the POC is sorted or you at least have their documents mentioned in the POC.

 

You could, of course, go for a strike out, but I think you are actually in a far more powerful position than that.

 

BTW, are there 2 claim forms? or are you both on the 1?

 

Keep smiling

gh

[gh2008]

Also I see it is a copyright form they've used and I have half a mind to contact the people owning the copyright to see if they have given the creditor permission to use it.

 

Could you be misled to think that with their info on the form that they could have had anything to do with the form? If so definitely

 

If not then you could tell them how bad it was being used

[Pumpkinhead]

Thanks for that GH.

 

Yes they've sent us both a claim form.

 

Back to my investigations later!

[gh2008]

Thanks for that GH.

 

Yes they've sent us both a claim form.

 

just checking - you have both sent the Acknowledgement haven't you.

 

I would also both submit CPR letters etc etc - you don't want one to go ahead whilst the other stalls.

 

Double costs back from the other side too

[Pumpkinhead]

Yes, we/ve sent both Acknowledgements but only made one CPR request. I will sent another one to them tomorrow from my OH.

 

Oh yes ...I like this one more and more:razz:

[gh2008]

My thinking is that you don't want one 'falling through the net' and the other being 'properly investigated'.

[Pumpkinhead]

OK Latest update. I've received a letter thanking me for mine (which was the CPR31.14 request. Apart from that all is says is that they confirm the date that I have to file my Defence with the Court.

 

None of the documents I requested were enclosed. So as far as I see it they have failed to comply with my CPR31.14 request.

 

I am planning to write to them reminding them of their obligations. Do you think this is the right thing to do.

 

Also, I've been reading about invalid DNs etc and it appears to me that they have unlawfully rescinded the agreement. Do you think I should be writing to them to accept this unlawful recission now, or should I wait and put this in my defence etc?

 

Urgent help/advice appreciated

[gh2008]

Nothing wrong with prodding them.

After all you are the side acting fairly aren't you

In the prod letter you can always acknowledge that you understand that the account has been terminated however you still need the info in order to fairly assess their claim. I would also remind them that you have asked for an extension to your defence filing date which they have conviniently ignored. Warn them that if they do not answer your request you will apply to the court for an order for them to comply and/or an order requesting their claim is struck out.

 

When was the date of issue of the N1s? you have 33days from date of issue to get the defence in, unless you get the extension agreement.

Your application realistically needs to get in a good few days I suppose before the defence due date

[Pumpkinhead]

Thanks GH.

 

I've sent them a reminder letter telling of their failures and giving them another 7 days to reply or else and used the phrases you suggested re terminated account etc.

 

I've calculated the date the defence needs to be in by adding 33 days from the date of issue of the NI so still have a couple of weeks or so to go.

 

I think my options are:

 

• To submit an embarrassed defence if they don't comply with the CPR31 request before I need to file, and/or
  
• Apply for a strike out on the grounds of inaccurate POC and invalid DN, but I think I would have to pay for this, or
  
• File a full defence including the unlawful rescission, inaccurate POC etc whether or not they send me the CPR stuff (thinking the Judge might strike out the claim without me having to pay??)
  

I also checked with the Court and they've received our Acks of Service.

[gh2008]

another option is to make an application for them to re-plead their claim and sibmit the docs.

yes you have to pay £75 which you would get back + other costs from the other side

You may qualify for no fees google ex160a and see if you do.

 

IMHO I would not do your option 3 especially bearing in mind there are 2 claims for the same thing.

 

You could always apply for a strike out on one of them and either an embarrassed defence or a application as above for the other

[Pumpkinhead]

Thanks again GH.

 

I'm unsure whether this is actually 2 separate claims. Looking at the N1s they both have the same claim number on them with the Defendant(s) on both being shown as me and my husband (shown as Mr & Mrs XYZ). At the bottom of each form there is another box for Defendant(s) name & address, one copy has my name and the other has my OH. What do you reckon??

 

There are two sets of POC attached separately provided by the Claimant's solicitor. Neither bear a claim number although there is a space for one. One of the POC's has my name as the defendant and the other my husband. Other than this, the content of the two POCs is the same.

 

How do I make the application for them to replead their case and would the grounds just be related to their POC being incorrect?

 

Is this the same process as applying for a strike out (and same form) and are you saying I pay the £75 for this or just for making an application to strike out. I'm a little confused on this - could you clarify for me please? (My head is starting to spin as have been reading through various other threads for hours now!!!)

 

Have read the booklet about fees thank and I am eligible to pay.

[gh2008]

eligible to pay????? or eligible for a fee remission

 

So 1 claim and you are co-defendants

 

Same process, have a read over here http://www.consumeractiongroup.co.uk/forum/legal-issues/241785-i-am-scared-please.html there's another one at a similar stage

[Pumpkinhead]

Thanks GH. Most enlightening. I will look at this some more tomorrow.

[Pumpkinhead]

Lastest news is I have not had a reply to my letter reminding them to reply to my CPR31.14 request so they have now failed to reply twice and over 14 days has elapsed.

 

I now need to make a decision.

 

Enter an embarrassed defence OR

 

Apply for a strike out on the basis an unlawfully rescinded agreement as I paid the arrears due at that time before the remedy date of the DN.

 

They reckon I have until early next week to file my defence but I am working on Friday of this week.

 

Suggestions most welcome on which approach to take or of any other ways to deal with this.