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

[gh2008]

IMHO I would be making an application for Summary Judgement CPR24.2 I think and costs against them.

 

They cannot win as the breach was rectified and therefore you should have judgment against them.

Your case for SJ is far stronger than for strike out

[gh2008]

here's another thread with a SJ/SO app just put in

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso-6.html#post2746841

 

although yours is on different grounds it goes through the basics

[gh2008]

ok, the defects with the DN are totally immaterial as you rectified the breach by making the payment as requested.

You have proof of payment - ref no from the OC & bank statement & letter thanking you for it.

 

So we can forget the DN

 

Then they unlawfully terminated the agreement - which you accepted by not making any further payments on the account.

You have evidence for this - their statement of truth in their POC.

 

They are now demanding payment of 'sums not yet due' which they are only entitled to do once

1. assuming enforceable agreement

2. customer breaches condition of agreement

3. s.87 default notice demanding rectification of breach

4. customer fails to rectify breach

 

only when all 4 conditions are met can teh creditor demand early repayment.

 

All they are entitled to now are the arrears at termination, which as you had paid them = nothing

 

--

 

can anyone see anything else or where I've gone wrong?

[MandM]

Looks sound to me! they terminated the agreement due to non-rectification of the DN. But this was incorrect. Therefore, the agreement was unlawfully terminated.

 

Your DN would have included the following statement>>>>

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER

ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

Your POCs state termination and enforcement through court on the back of this 'breach', even though you have their written assurance on a legal document (DN) that no further action will be taken.

looks like you've got them up a creek IMO.

 

Going back to the CPR31.14, what have you asked for? Is it only docs referred to in the POCs?

 

M

[MandM]

One more point - you say this is from your local court. With regards to service of docs I think the 5 days only applies if it's MCOL through Northampton. If it's from your own court then I believe it's only 3 days, therefore 14 + 3 + 14 giving 31 days from date on the POC.

 

M

[gh2008]

Can I just confirm something - are there 2 separate claims? i.e. 2 different claim no.s or is it one claim no with 2 sets of paperwork?

 

 

Just re-read the thread and I would definitely go for summary judgement against the claimant.

 

Reason for summary judgement is that the claimant is not entitled to 'sums not yet due' - that is a benefit of s.87 and they have not complied with it.

 

You need to get this sorted ASAP !!!! post your N244 & Witness statement up here for comments.

 

IMHO if you defend you are weakening your case.

[gh2008]

One more point - you say this is from your local court. With regards to service of docs I think the 5 days only applies if it's MCOL through Northampton. If it's from your own court then I believe it's only 3 days, therefore 14 + 3 + 14 giving 31 days from date on the POC.

 

M

 

 

yes - be VERY careful with dates - miss a deadline and they win by default.

 

Ring the Court and check

[Pumpkinhead]

Thanks for all your comments. Ive had a letter from them today enclosing a copy of the agreement and the DN but not any letter of termination or the letter before action. They say they have given me until 16th Feb to file my defence with Court.

 

I will ring Court tomorrow and check on the extension.

 

It is one claim with two sets of paperwork and only one shared claimed number so I think we are co-defendants.

 

I will do the N244 & Witness statement first thing tomorrow and post up for your comments.

 

Many thanks for your help.

[Pumpkinhead]

I've rung the court and they've confirmed I have to file my defence or whatever by 16th Feb. Also they told me that although there is only one claim number we BOTH have to send in defences etc.

 

One matter I would just like to check with you all. As you know I received a DN and paid the arrears before the remedy date. I have a letter from them in confirmation of this but have noticed that it also states "the recovery action will only be suspended on understanding that the required monthly payments are received by the due dates. Should payment cease at any point we will immediately resume recovery action for the full balance outstanding." The letter also tells me the account card is no longer valid and should be destroyed.

 

Are they allowed to take court action claiming the full amount without issuing another DN?:?

 

I did make the monthly payments but then had tooffer them reduced payments which they refused. After this the court claim came through.

 

The POC on their claim IS wrong. They say the account was terminated the day after the DN remedial date passed because on non payment BUT I had in fact paid those arrears by then.

 

Interestingly they have not sent me a copy of any termination notice with the CPR31.14 request I made asking for same. I still get statements from them.

 

I am really confused now. Please help. I was going to go for the Summary Judgement. Will it still be OK to do this?

[gh2008]

I've rung the court and they've confirmed I have to file my defence or whatever by 16th Feb. Also they told me that although there is only one claim number we BOTH have to send in defences etc.

 

Oh yes, you both have to do everything otherwise one of you will lose - however you can both also claim for costs etc when you win

Get a list together of time spent @ £9.25/hr and actual costs

 

One matter I would just like to check with you all. As you know I received a DN and paid the arrears before the remedy date. I have a letter from them in confirmation of this but have noticed that it also states "the recovery action will only be suspended on understanding that the required monthly payments are received by the due dates. Should payment cease at any point we will immediately resume recovery action for the full balance outstanding." The letter also tells me the account card is no longer valid and should be destroyed.

 

Are they allowed to take court action claiming the full amount without issuing another DN?:?

 

No !!! they can't!!!

 

IF you comply with the DN the CCA states that the breach is considered not to have happened

89. Compliance with default notice.

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

Therefore the agreement is back at the stage prior to the default.

They cannot just cancel your card - (well they can but you don't have to repay) as to cancel they must have done it under s.98

BUT as they did not give you 7 days notice they couldn't do that either.

 

As it stands you have a pretty much watertight SJ against them and a possible counterclaim for damages against them (but that gets complicated)

 

GET YOUR SJ APPLICATION IN ASAP

DO NOT LET IT GET TO THE POINT WHERTE YOU HAVE TO DEFEND THIS RIDICULOUS CLAIM!!!!!

 

The POC on their claim IS wrong. They say the account was terminated the day after the DN remedial date passed because on non payment BUT I had in fact paid those arrears by then.

 

No, their POC is right in that respect - they DID terminate it - BUT IT WAS UNLAWFUL

 

there is no requirement for a termination notice at all

 

hth

[MandM]

Yep. Tough tits to them. They should have issued another DN. The fact they terminated the account took away their own ability to do so. Nice shot in the foot

[Pumpkinhead]

Thanks for that. Sigh of relief.

 

I'm trying to click on a link in your earlier email GH but it doesn't seem to be working. See below. Has it been moved or deleted or where else can I look for it?

 

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

[gh2008]

try this one http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html SJ app just put in

[Pumpkinhead]

OK. So on the N244 Q3 "What order are you asking court to make and why" - am I asking for a Summary Judgement pursuant to CPR24.2?

 

Am I right in thinking this is different to a request to strike out or are they one and the same?

 

I see I need to draft a statement. Should I also attach a draft of the order I'm applying for?

 

My brain is really spinning with this - the form does look straightforward but its knowing what to put!

[gh2008]

Have a read on Costa's thread for the difference and to get an idea of the statement.

 

Strike out is that without a defence being submitted they cannot win - well no they could

 

Summary Judgement is putting the facts before the judge and saying "does this *really* need to go to trial - the outcome is already obvious - they cannot win

 

Your statement will need the evidence of payment etc as well, letter from them and the bank statement showing the transaction.

 

Once you get going with it, post it up

[Pumpkinhead]

I am composing my N244 and will post it up with my draft order shortly but I have a couple of questions:

 

When requesting the Summary Judgement for Q5 on the N244 should I enter "Without a hearing"?:-? It would then follow that questions 6,7 and 8 would not be applicable?

 

Also as the Court has told me that both me and my husband have to return defences does this mean that we have to submit two identical N244s and both pay £75?

 

Here is what I've got so far. I will now work on the Draft Order,

 

Proposed answers for the N244 form.

 

Q3. What order are you asking the court to make and why?

A3 I respectfully ask the Court to make a Summary Judgement under CPR24.2 against the claimant’s entire claim and statement of case, on the basis that the claimant has no real prospect of succeeding on their claim and the defendant can show that the claim would be bound to be dismissed at trial.

 

 

Q4 Have you attached a draft of the order you are applying for?

A4 Yes (will attach a draft order)

 

 

Q5 How do you want to have this application dealt with?

A5 Without a hearing ???

 

 

Q6 How long do you think the hearing will last?

A6 N/A

 

Q7 Give details of any fixed trial date or period

A7 N/A

 

Q8 What level of Judge does your hearing need?

A8 N/A

 

Q9 Who should be served with this application

A9 The claimant’s solicitor ??

 

Q10 What info will you be relying on in support of your application?

A10 I will tick TWO boxes : the attached witness statement AND the evidence set out in the box below (which will be copy of my bank statement showing payment, their letter thanking me for my payment etc)

Edited February 11, 2010 by Pumpkinhead
Extra information

[Pumpkinhead]

I am composing my N244 but have a couple of questions:

 

When requesting the Summary Judgement for Q5 on the N244 should I enter "Without a hearing"?:-? It would then follow that questions 6,7 and 8 would not be applicable?

 

Also as the Court has told me that both me and my husband have to return defences does this mean that we have to submit two identical N244s and both pay £75?

 

Here is what I've got so far.

 

Proposed answers for the N244 form.

 

Q3. What order are you asking the court to make and why?

A3 I respectfully ask the Court to make a Summary Judgement under CPR24.2 against the claimant’s entire claim and statement of case, on the basis that the claimant has no real prospect of succeeding on their claim and the defendant can show that the claim would be bound to be dismissed at trial.

 

 

Q4 Have you attached a draft of the order you are applying for?

A4 Yes (will attach a draft order)

 

 

Q5 How do you want to have this application dealt with?

A5 Without a hearing ???

 

 

Q6 How long do you think the hearing will last?

A6 N/A

 

Q7 Give details of any fixed trial date or period

A7 N/A

 

Q8 What level of Judge does your hearing need?

A8 N/A

 

Q9 Who should be served with this application

A9 The claimant’s solicitor ??

 

Q10 What info will you be relying on in support of your application?

A10 I will tick TWO boxes : the attached witness statement AND the evidence set out in the box below (which will be copy of my bank statement showing payment, their letter thanking me for my payment etc.

 

Here is my stab at a draft order, cribbed from another.

 

Draft Order

In the *************

county court

Claim number **********

 

 

 

Between

************* - Claimant

and

xxxxxxxxxx - Defendant

 

Draft Order

 

UPON reading the Defendants' applications

IT IS ORDERED THAT:

 

 

The claim will be struck out without further order.

 

The Claimant to pay the Defendants' costs in the application to be summarily assessed.

[gh2008]

Draft Order is for directions to strike out - you're not after a strike out you're after SJ

 

Concentrate on your Witness statement - that's the bit that is difficult

 

Your Witness statement will be a combination of a timeline and reasons for why they *must* lose, together with some evidence, law and case law thrown in to back it all up.

[Pumpkinhead]

So I don't need the draft order then?

 

I'm working on my Witness statement now.

[Pumpkinhead]

Here is my very draft Witness Statement. It needs a lot of work on it I think to get it finished to perfection.

 

So far I haven't entered much in the way of law and case law. Any help with these much appreciated - threads to look at etc or suggestions??

 

Here it is:

Witness Statement

 

In the *************

county court

Claim number **********

 

Between

************* - Claimant

and

xxxxxxxxxx - Defendant

 

 

WITNESS STATEMENT OF

#########

 

I, ####, of ##### will say as follows

 

1. On (DATE) the Claimant served a Default Notice under Section 87 (1) of Consumer Credit Act upon the Defendant, pursuant to a breach of a regulated agreement for revolving credit Agreement Number (Is this the right term for a Store Card with a credit limit) ( XXXX). (copy enclosed)

 

1.1 The nature of the breach was stated as being the failure of the Defendant to pay instalments amounting to £XXX within 14 days of the monthly due dates.

 

1.2 The action required to remedy the breach was for payment of the total of the instalments in arrears to be made to the Claimant by (DATE).

 

1.3 The Default Notice was accompanied by a letter from the Claimant (copy attached) which required furthermore an additional payment for the month of (MONTH) of XX and advised that the credit token (Store card) supplied to me would no longer be valid and should be destroyed as I had failed to comply with the terms of the Credit Agreement. (SHOULD I POINT OUT HERE THAT THE LAST PART OF THEIR STATEMENT AMOUNTED TO AN UNLAWFUL TERMINATION OF THE ACCOUNT AS I HAD NOT BEEN ALLOWED TIME TO REMEDY THE BREACH)

 

2. On (DATE) I telephoned the store and made a payment of £xxx by debit card, being the total of the instalments in arrears as required by the Default Notice together with the monthly instalment due for (MONTH) as requested in the Claimant’s accompanying letter as detailed in point 1.3 above. This action therefore remedied the breach detailed in the Default Notice before the deadline of (DATE).

 

3. I subsequently received a letter from the Claimant dated (DATE) together with a monthly statement of account (copies attached).

 

3.1 The letter from the Claimant dated (DATE) thanked me for my payment of £xxx on (DATE) and confirmed this had cleared the arrears on my account. The letter then went on to say that recovery action would be suspended on the strict understanding that the required monthly payments were received by the statement due dates each month and that should payments cease at any point they would immediately resume recovery action for the full balance. The letter continued by reminding me that the credit token was no longer valid and should be destroyed.

(SHOULD I MAKE REFERENCE HERE TO THE FACT THAT ANY ATTEMPT TO RESUME RECOVERY ACTION WITHOUT A FURTHER DEFAULT NOTICE WOULD BE UNLAWFUL OR INVALID ETC)

 

3.2 The statement of account clearly shows my payment of £xxx as having been made on (DATE) and therefore full payment of the arrears had been made before the date required and stated in the Default Notice.

 

4. Owing to financial difficulties I wrote to the Claimant on (DATE) asking them to accept a reduced monthly payment and enclosed a copy of a personal budget sheet (copy attached).

 

5. I did not receive any reply but made began to make reduced monthly payments.

 

6. I received a notice of intended legal action from the Claimant’s solicitor (NAME) dated (DATE) demanding that £xxx being full payment of the outstanding balance of the Agreement be received by them by (DATE) or failing this they would commence court proceedings for the recovery of that amount plus interest, fees and costs (copy attached).

 

6.1 I respectfully point out to the Court that the Claimant’s request for full payment of the outstanding balance of the Agreement was a direct contravention of section 89 of the Consumer Credit Act (Compliance with Default Notice) which states that “If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88 (1) (b) or © the breach shall be treated as not having occurred”, as I had in fact taken the required action and paid the arrears in full.

 

7. On (DATE) I both emailed and posted a letter to the Claimant’s solicitor (copy attached), repeating my request for their client to accept my offer of a reduced monthly payment for a six month period. SHOULD I LEAVE THIS BIT OUT?

 

8. On 16 January 2010 I received a Claim Form claiming £xxx, £xx in interest and costs together with the Particulars of Claim which stated in Point 3 that I had failed to pay the arrears.

 

8.1 The Particulars of Claim contains a Statement of Truth as follows: “The Claimant believes that the facts stated in these Particulars of Claim are true.” I would respectfully point out to the Court that the Claimant’s Statement of Truth is clearly wrong as the Particulars of Claim are untrue. I have evidence in the form of my bank statement, a letter and a statement of account from the Claimant that the arrears had been paid in full before the date given in the Default Notice as stated in point 3.1 above.

 

8.2 Furthermore under Point 3 of the Particulars of Claim it is stated that the Claimant terminated the Agreement on (DATE). This is in direct contravention of sections 67-73 (Cancellation provisions) of the Consumer Credit Act as the breach detailed in the Default Notice had been remedied in time. Therefore this termination is an unlawful recission of the Agreement.

 

9. I sent a letter dated 19 January to the Claimant’s solicitor making a request under CPR31.14 for the documents referred to by them in the Particulars of Claim. Despite sending a reminder email and letter to them dated 29 January, to date I have only received a partial copy of the Agreement and a copy of the Default Notice dated (DATE). The Claimant has therefore failed to comply with their duties under CPR31.14 and provide me with the other documents they refer to in the Particulars of Claim, namely a full copy of the agreement, the termination notice and the statement of account letter before action. They also failed to provide me with an additional period in which to submit any defence or to advise me that they required more time to comply with my request. This has therefore left me, as a litigant in person, somewhat disadvantaged. (SHOULD I PUT THIS BIT IN?)

10. In summary, I respectfully ask the Court to issue a summary judgement in my favour on the basis that the Claimant has unlawfully terminated the agreement and also request them to award costs to me to cover both fees spent and time taken to deal with this claim and additional damages for damage to my credit reputation (NOT SURE ABOUT THIS LAST BIT)

[gh2008]

You're getting there - well done

 

Start with when you opened the account. Do you recognise the agreement sent as the one you signed? were there any additional terms & conditions given to you before you signed?

 

I'm busy at the moment, but I will certainly help with this either later today or over the weekend, then you can get it off on Monday.

 

Keep going

Have a good read about the need for and about default notices in the CCA s.87 onwards. Then you can see which bits of that you need to quote and where.

[Pumpkinhead]

thanks for that gh, especially the encouragement. I'm busy today so don't expect to do anything much on this today but I will be working on it over weekend. I can take it to the Court on Monday.

 

I've just rung the Court to ask if me and my OH can make 1 N244 application between us and just pay one lot of £75. The man I spoke to was very helpful and said that as long as both of our names is on the application and it is signed by both of us, that will be acceptable.

[The GodMother]

subbing with interest.

[Pumpkinhead]

I'm working on our N244 application again and will add some new pieces up on site later on. The new pieces will be in red.

 

For what it's worth I will also try to upload a copy of the agreement. I think the agreement is valid, but would welcome any comments.

[Pumpkinhead]

gh2008 I just wanted to check something with you, if I may?

 

In your reply number 28 to this thread you say that the defects with the DN are irrelevant and that we can forget the DN.

 

Do you mean that it would be irrelevant for me to make reference to this in the Witness Statement or should I include this as well?