Loan Arranged Through Intermediary For Limited Company

[slick132]

Perhaps those not willing to assist BobD can desist from posting, and leave it to those who are willing, thanks.

 

Hi Bob,

 

I'll repeat, your defence should answer the POC. As this is insufficiently particularised, you'll enter an "embarrassed" defence as suggested above.

 

Letters sent under CPR18 and CPR31.14 should still be sent, regardless of the deadline and timescales.

 

You can then seek the further info you require for use when defending in response to their revised POC (which I assume the court will require) and when preparing your main body of evidence.

[pedross]

Hi slick

 

In view of the fact that I am the only one who has posted for a while I must ask - is that aimed at me? If so I am not 'those' I am Pedross please.

 

With regards to the defence I believe you are doing a grand job.

 

However, there is a debt and you have already stated that your contacts feel that it is enforceable, so unless we can unearth some wrong doing by the company how will bob defend once a valid claim is submitted.

 

If it is addressed to me, please clarify your concerns about my post and if not, I am sorry that I took offence.

 

Pedross

[slick132]

Hi Pedross and NO my comments were not aimed at you.

 

I hadn't seen your post when I made mine, as we posted only 2 minutes apart.

 

The defence can only be based on Bob's assertion that the loan was applied for fraudulently where he was an innocent party, with the funds being paid into the company, or other, account.

[BobDuncan]

Why would they discuss anything about the account details with you, If all you were doing was to witness a signature

 

I was asked to sign as a witness to the first loan and this is the one that gave the company account details to Halifax and also the same details were taken and used for the second loan. I have requested all copies of documents from both Halifax and Hendeson Barker Ltd (H&BLTD). H&BLTD sent a request for DSAR in August 2009 and I have also got a copy of the acknowledgement from Halifax. It is these documents that I have requested back from H&BLTD. I don't know why but they have not returned my numerous phone calls, replied to my letter or numerous emails I have sent them. Perhaps someone could ring them and see if they answer?? They're number is edited or edited.

 

I have also send Halifax letter to supply details of where the payments were made and where the monthly payments were drawn down from.

 

BobD

Edited February 7, 2010 by slick132
tel nos. edited

[BobDuncan]

I have requested further copies of the original loan arrangement document which clearly states at the top INTERMEDIARY, has anyone else seen this type of document? It is without doubt in my mind that the intermediary was under no illusion that the loan was for the company and the payments would be paid into the company and monthly debits by the company. The second loan was a complete fiasco as you say quite rightly I should have read all the documents thoroughly before signing anything. I have also sent a letter to Halifax requesting the copies of the bank details etc for both loans.

 

The rest you can pick up in the post prior to this.

 

BobD

[BobDuncan]

Perhaps those not willing to assist BobD can desist from posting, and leave it to those who are willing, thanks.

 

Hi Bob,

 

I'll repeat, your defence should answer the POC. As this is insufficiently particularised, you'll enter an "embarrassed" defence as suggested above.

 

Letters sent under CPR18 and CPR31.14 should still be sent, regardless of the deadline and timescales.

 

You can then seek the further info you require for use when defending in response to their revised POC (which I assume the court will require) and when preparing your main body of evidence.

 

I know it is probably not the norm, but could you word a suitable letter on my behalf regarding the 'Embarrassed Defence'

 

BobD

[BobDuncan]

Hi Bob

 

I have only just started looking at this and slick is giving you good advice on the hearing so I have no intention of duplicating or confusing good advice.

 

You posted the following:

 

'I was awarded £29000 but to this date have not had a penny from him. The tribunal sat on 30 April 2008 and be wrote to say the company ceased trading on 17 April 2008. An obvious ploy so as not to pay any compensation to anyone.'

 

To my understanding the company has ceased trading and the affairs are being dealt with by the Official Receiver at Croydon. Were you aware of this and does it sound correct? If so have you contacted the OR?

 

Next, comments have been made about the funds being paid into the company account and repayments made by the company account - can you prove that?

 

Finally, what first agreement are you referring to, do you have any information about that agreement.

 

Just to confuse everyone, including me - does DA mean anything to you?

 

Pedross

 

I have been in contact with the OR and things are being done regarding this matter. I have requested the details of the payments in and out of the account with dates. I am seeing the accountants she used on Monday morning with a view to getting copies of the accounts to verify the amounts paid in etc.

 

The first agreement as stated in other posts was the arrangement made by a guy who came to the MDs office and filled in the details there. The only form I saw was a form which he asked me to sign and indicated that it was to witness the company loan. I believe he is referred to as the Intermediary on the form I saw and for which I am still awaiting a copy of.

 

Sorry DA does not mean anything to me - should it?

 

BobD

[BobDuncan]

I am just locking up at work, and will be home soon so I can get on and deal with this and other matters, again thanks, by the way I am not used to all this forum stuff and didn't know what PM meant, do now though!!!

[BobDuncan]

Got to laugh, my donations to you are through my Halifax account, I think this may be why they allowed the loans in the first place.

[pedross]

I have been in contact with the OR and things are being done regarding this matter. I have requested the details of the payments in and out of the account with dates. I am seeing the accountants she used on Monday morning with a view to getting copies of the accounts to verify the amounts paid in etc.

 

The first agreement as stated in other posts was the arrangement made by a guy who came to the MDs office and filled in the details there. The only form I saw was a form which he asked me to sign and indicated that it was to witness the company loan. I believe he is referred to as the Intermediary on the form I saw and for which I am still awaiting a copy of.

 

Sorry DA does not mean anything to me - should it?

 

BobD

 

Good man Bob

 

You are already making good progress to establish the facts by the looks of it.

 

You need to take slick's advice in dealing with the court so you dont miss any deadlines.

 

I will keep an eye on your thread.

 

Pedross

[slick132]

Hi Bob,

 

I've edited out the tel nos. from post #54 - I don't think having these on view will help your cause.

 

The link in post #40 gives you an "embarrassed" defence example which you can use. Just amend it to reflect your own case.

 

[BobDuncan]

Thanks Slick, you've been an invaluable help.

 

Yours truly

 

BobD

[BobDuncan]

Hi Slick,

 

I have prepared the following embarrassed defence and will file this on line by Thursday this week, can you review it for me and let me know what you think. Am still reading CPR and I can't get my head around the fact that the Deputy District Judge at the last hearing said 'IT'S NOT ROCKET SCIENCE'. It may not be to someone who deals with this in their everyday job. I suspect if I requested she come to my kitchen showroom and design a kitchen using our CAD programme she would, like me be very much out of her depth.

 

In the XXXXXXXXXX County Court

Claim number XXXXXXXXXX

 

 

 

 

Between

XXXXXXXXXXXXXX- Claimant

 

and

 

 

Mr XXXXXXXXXXXXXXXXX - Defendant

 

 

 

Defence

 

1. I XXXXXXXXXX of XXXXXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by XXXXXXXXXXXXX

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

 

b) A complete copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. On receipt of the claim form, I requested from the Claimant; information referred to in the Particulars of Claim, under both CPR 18 & CPR 31.14 . Both requests were mailed via Royal Mail. This information was in the form of a Data Subject Access Request (DSAR Reference Number 256412) submitted on my behalf by a company called Hxxxxxxxxx & Bxxxxxxxx Ltd in August 2009 and acknowledged by HBOS letter dated 5 August 2009 a copy of which has been supplied to the claimants solicitors. I have subsequently had great difficulty in getting Hxxxxxxxxxxxxx Bxxxxxxxxxxx Ltd to return to me all the documentation supplied by myself and HBOS Plc. At this moment in time all attempts by telephone, letter and email have failed to get a response. I am currently waiting for a reply to a letter sent by registered post on Monday 9 February 2010.

 

 

 

 

5. A letter was sent to Halifax requesting the bank details and name of the INTERMEDIARY who originally instigated the loan application on a previous loan paid to the same bank account and drawn down from same account, yet the Claimant has failed to provide the information requested. I wish to make the court aware that the claimant is trying to frustrate proceedings and denying the Defendant an opportunity to file a defence and counter claim.

• Consequently, I deny all allegations on the particulars of claim and request the Claimant is ordered to file a fully particularised Particulars of Claim.
  

• I respectfully request the Courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim.
  

6. I respectfully request that the Court consider striking out the claim under CPR 3.4.2 (a) because it is not fully particularised nor offers any legal cause of action.

 

 

 

7. Alternatively, it is respectfully requested that the Court consider striking out the claim under CPR 3.4.2 ( C ) because, in light of the failure to respond to both the defendants requests for particular information relevant to his defence, the Claimant is unable to substantiate their claim with documentary evidence.

 

 

8. In the alternative if the Court decides not to strike out the Claimant’s case, in order for the Defendant to determine that the documents the Claimant claims to be relying upon are properly executed and contain the required prescribed terms and correct figures as to make such an Agreement enforceable by virtue of s.87 Consumer Credit Act (1974), the Defendant respectfully requests that the Court orders full disclosure of the following documents pursuant to the Civil Procedures Rules:

 

a) true copy of the executed Agreement as referred to in the Particulars of Claim, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

b) A true copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

 

c) A full breakdown of how the sum claimed has been calculated with supporting documentation;

 

d) A true copy of any Default Notice as referred to in the Particulars of Claim and issued under the terms of any such executed Agreement;

e) A true copy of the direct debit mandate showing details of the account the loan was paid into and details of the account monthly sums were drawn down from.

 

f) Any other documents the Claimant seeks to rely on.

 

9. Alternatively, if the Court is not in agreement with strike out of the claim, I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in point 8 above or until the Court orders its compliance with the same. I will then be in a position to file a fully particularised Defence and Counterclaim and will seek the Courts permission to amend my statement of case accordingly.

 

Further

 

 

10. The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2

(3)(a), which clearly prohibits such an award:

 

 

· The general rule

 

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

 

 

Statement of Truth

 

 

I XXXXXXXXXXXXXXX, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

[BobDuncan]

Can I just reiterate the POC which reads: The Claimant's claim is for 19943.48 presently due pursuant to a credit agreement entered into by the parties, full particulars of which have been supplied hitherto. By an agreement dated 6/06/2005 the Defendant has an account number X/xxxxxxxx-x with the claimant. The Defendant has failed or delayed to adhere to the terms of the Detault Notice issued by the Claimant under the terms of the Consumer Credit Act 1974. The balance due as at 0// on said account is 1994.48.

 

Where it states 'The balance due as at', this is exactly as the date is shown, is this normal?

 

With the copy of agreement sent by Bank of Scotland are copies of pages numbered 1of6, 2of6 and 3of6, there is no other paperwork numbers 4 to 6of6?

 

BobD

[BobDuncan]

Hi Bob,

 

I've edited out the tel nos. from post #54 - I don't think having these on view will help your cause.

 

The link in post #40 gives you an "embarrassed" defence example which you can use. Just amend it to reflect your own case.

 

 

I put the phone numbers up as I have been trying every day for the past week to get them to answer their telephones, without success. Every time I ring the landline number it shows engaged, so someone is there?

 

Has anyone else had dealings with this company?

 

Bob D

[slick132]

Hi Bob,

 

The POC date is not normal but affects little - the POC's are inadequate.

 

Did you actually send off CPR 18 and CPR 31.14 letters. Or if this was done by Henderson Barker, do you have copies of the letters that were sent.

 

If not, you should do this yourself now, as you can't rely on getting anything back from HB Ltd. have you requested your documents back from them using Rec'd Del'y ?

[BobDuncan]

Yes, I have sent letters this Saturday to Halifax(CPR31.14) ref original bank details, the name of the Intermediary as requested on numerous occassions and also sent one to their solicitors (CPR 18 asking for all documents they are relying on in the claimants case. I was working from 8.30 til 7.30 pm on Saturday and did not have time to go to the post office, sent them first class and will call them tomorrow to check.

 

Sorry, do you mean the POCs are inadequate in so far as to what I have written in my Embarrassed Defence? Please bear with me as I feel like my brain is overloading trying to read and inwardly digest everything.

 

I don't exactly know what H&B sent, all I have is a copy of the letter from HBOS acknowledging the DSR request with the ref number and confirming receipt of my postal order and written authority for HALIFAX to provide H&B with the requested information. I had already sent the paperwork I had from Halifax which included my copies of both loan ageements.

 

I will copy a letter I received from Ultimate Law Ltd which clearly states the loans are unenforceable, and they had given Halifax 28 days to respond to their letter (I never saw the letter Ultimate Law claim to have sent to Halifax).

 

As far as I was aware the experts were on the case and I just supplied the information as and when requested.

 

At the beginning of Dec 09 I was informed that Ultimate Law was no longer proceeding with my case as it was too far progressed (this was after 4 months of ongoing communication). I asked them to return any paperwork on my case to me and they said I had to put my request in writing, this I did but have never received anything from them either. By the way, Ultimate Law originally was working on a 'No win, no fee' basis, when I telephoned them about not proceeding, they did say if I paid they would represent me?

 

BobD

Edited February 8, 2010 by BobDuncan

[BobDuncan]

I will duplicate the letters tomorrow and send them recd delivery, I realise this is so that I can confirm they have been delivered. I will do the same with the letters I sent to H&B and Ultimate Law Ltd.

 

Is my embarrassed defence to the courts correct?

 

BobD

[slick132]

Hi Bob,

 

I have sent you a PM.

 

[slick132]

Hi Bob,

 

Please revise the defence to include the suggestions I have sent you and post up the final document, to confirm what you have sent.

 

[BobDuncan]

Hi Slick, please find below the revised as requested. I have sent today the letters suggested by recorded delivery just to reassure you.

 

In the Birmingham County Court

Claim number xxxxxx

 

Between

Bank of Scotland Plc- Claimant

 

and

 

 

Mr xxxxxxxxxxxxxxxxx - Defendant

 

 

 

Defence

 

1. I xxxxxxxxxxx of xxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by the Bank of Scotland Plc.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claim disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

 

b) A complete copy of the original executed credit agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. After receipt of the claim form, I requested from the Claimant; information relating to the Particulars of Claim, under CPR 31.14. Furthermore, information has been requested from the claimant under CPR 18. Both requests were mailed via Royal Mail On Saturday 7 February 2010.

 

 

 

5. I have yet to receive any response from the Claimants bank or their solicitors in response to the above mentioned CPR request.

• Consequently, I deny all allegations on the particulars of claim and request the Claimant is ordered to file a fully particularised Particulars of Claim.
  

• I respectfully request the Courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim.
  

6. I respectfully request that the Court consider striking out the claim under CPR 3.4.2 (a) because it is not fully particularised nor offers any legal cause of action.

 

 

 

7. Alternatively, it is respectfully requested that the Court consider striking out the claim under CPR 3.4.2 ( C ) because, in light of the failure to respond to both the defendants requests for particular information relevant to his defence, the Claimant is unable to substantiate their claim with documentary evidence.

 

 

8. In the alternative if the Court decides not to strike out the Claimant’s case, in order for the Defendant to determine that the documents the Claimant claims to be relying upon are properly executed and contain the required prescribed terms and correct figures as to make such an Agreement enforceable by virtue of s.87 Consumer Credit Act (1974), the Defendant respectfully requests that the Court orders full disclosure of the following documents pursuant to the Civil Procedures Rules:

 

a) A true copy of the executed Agreement as referred to in the Particulars of Claim, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

b) A true copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

 

c) A full breakdown of how the sum claimed has been calculated with supporting documentation;

 

d) A true copy of any Default Notice as referred to in the Particulars of Claim and issued under the terms of any such executed Agreement;

e) A true copy of the payment mandate showing details of the destination account into which the loan was paid.

 

f) Any other documents the Claimant seeks to rely on.

 

9. Alternatively, if the Court is not in agreement with strike out of the claim, I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in point 8 above or until the Court orders its compliance with the same. I will then be in a position to file a fully particularised Defence and Counterclaim and will seek the Courts permission to amend my statement of case accordingly.

 

Further

 

 

10. The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2

(3)(a), which clearly prohibits such an award:

 

 

· The general rule

 

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

Statement of Truth

 

 

I xxxxxxxxxxxxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

[BobDuncan]

Hi Slick132,

 

Just a quick post to say thank you very, very much for all your help in this matter. Today has been a good day. Got home to find a large letter from H&B containing all the paperwork I should have had 3 months ago. Second envelope I opened is from Halifax, admitting that the PPI sold on the disputed loan was mis-sold and they will be writing to me as soon as possible to offer a settlement within the month. I will be contacting them tomorrow as I do not feel that any monies should be paid to me due to the other matters already mentioned. I will however be pursuing them for compensation for the losses I incurred whilst they did not fulfil the PPI. They transfered monies from my personal account to cover the monthly payments and also by doing so, this left no money in my account to cover the direct debits, hence charges etc that should not have been necessary. I feel this is only fair and honest.

 

I will be contributing more as and when I can and have already learnt so much from all concerned. I know it sounds corny coming from a 6' 1" 18 stone baldy but not all angels are in heaven.

 

BobD

[slick132]

Hi Bob and thanks for the up-beat update.

 

I'm not sure whether you should pursue for compensation to cover your losses due to non-payment under the PPI policy as this support the assertion that the loan (and PPI policy) is yours.

 

Depending on how the claim against you goes, you should seek refunds of the amounts they took from your bank a/c by Set-Off.

 

So, rather than seek compensation for their failure to pay up under the PPI policy, I think you should seek compensation for the amounts (wrongly) taken from your personal account, for a loan that isn't yours.

 

Playing Devil's Advocate, as usual.

[BobDuncan]

Great Slick132, as usual I get a bit excited when for once I get a positive after so much negativity. Suffice to say your advice is spot on and I will await the responses from their solicitors and the outcome of the impending hearing.

 

Should I inform their solicitors of the offer as it will obviously have a bearing on the amount they claim is outstanding?

 

BobD

[slick132]

Hi Bob,

 

Sorry if I appeared to pee on your barbeque - just trying to protect your interests !!

 

I would do nothing at the moment. Maybe review this when you hear further from Halifax about the PPI.

 

No doubt, if they refund to the account, this will be passed down their lines of communication.