HP Trouble - Claim form issued.

[emandcole]

Yep. How on earth has the claimant got any say in what you might or might not be doing? I'll come back and check over the PofC later, I think the best option you have is to let them prove their case as GH says rather than provide a full defence straight away. Perhaps the best option is to ask the claimant to present their PofC in more detail.

 

Think this will take some considered thought from us all before we jump straight in as this appears to be far from straight forward.

[gareth19]

That does NOT clear it up.

 

AQ comes AFTER a defence has been submitted.

 

Ring them back and ask how has it got to AQ stage without a defence being submitted

 

The court says that the claimant informed them that I would likely be defending the case and therefore that is why they sent me an allocation questionnaire. I have been told that I can either withdraw my defence and admit liability or if indeed I will be defending then to send the questionnaire back as arranged by 20th Sept.

[gareth19]

Added to that, it's not just that a default notice needs to be served but you needed to have NOT made the payment of the arrears as requested in the DN. The way it works is that if the total amount has become payable due to a breach of the agreement then the option to VT is no longer available. In that situation your only option would be a voluntary surrender where you give the car back and pay the entirety of the outstanding amount.

 

Hang on I'll try to dig out some links.

 

I imagine I had a default notice sent to me all those years ago but they have not sent a copy of it since so I can not say the date that the default was entered. In any case when I sent my letter of VT nobody turned around and told me that it was no longer an option. I was just led to believe all these years that it was a VT as I asked for. Only in January this year did Shoosmiths come up with this VS idea

[gareth19]

Yep. How on earth has the claimant got any say in what you might or might not be doing? I'll come back and check over the PofC later, I think the best option you have is to let them prove their case as GH says rather than provide a full defence straight away. Perhaps the best option is to ask the claimant to present their PofC in more detail.

 

Think this will take some considered thought from us all before we jump straight in as this appears to be far from straight forward.

 

Thanks for the info. As everything is on a tight time schedule now are you saying I should tell the court I now no longer wish to defend? Also forgive me as I know nothing about legal jargon so what exactly is PofC? And how would I go about asking them to provide more details? I sent a letter to them as advised on here with a CPR 31.14 request and as you can see on this thread, their reply was less than helpful and basically told me I wasn't entitled to see any documents

[gh2008]

POC = Particulars of Claim

 

Basically the claimant needs to 'make their case' using the POC.

 

They can chose to use the online service, or if the case merits it, such as having an agreement and other paperwork crucial to the case which was not properly disclosed in the Pre-Action letter then they can issue the claim online and serve the POC separately.

 

The POC on the claim form is what you have to answer - NOT what you may or may not know about the case.

 

The claimants *should* write proper POCs and they know it, countless times the claimants are hauled over the coals by the Judges for poor POCs BUT they work as defendants can produce a long winded defence, which they do not fully understand, full of holes for them to exploit.

 

 

I suggest you have a read of a few other threads and get up o speed on the process involved.

Or buy the book advertised on here

[gareth19]

Thanks. Where will I find their POC? Will the court send it to me?

[gh2008]

You know that nasty bit of paper you got from the Court - you know the one telling you there was a claim

 

Well on there is a box titled Particulars of Claim - that'll be it

[citizenB]

Thanks. Where will I find their POC? Will the court send it to me?

 

Gareth, the POC is the document in post 35 The Particulars is the statement in the larger of the boxes and is their reason for taking you to court.

 

It states:

 

The Claimant is the Assignee of a Deb(s) from Online Finance Limited. Motorloan reference 12345678.

Notice of Assignment having been given to the Defendant in writing. Despite demand for payment £AMOUNT remains due. The Claimant claims £AMOUNT and interest under s69 County Court Act 1984 and costs.

 

 

In Morgans letter they claim you are not entitled to documents not mentioned in their POCs.. but they have mentioned :

 

Notice of Assignment

Motorloan Reference = contract

Demand for Payment = default notice or final demand

 

They are claiming a sum of money which they need to substantiate, so you are entitled to ask for statements.

 

As I said their response to your CPR31.14 is nonsense and obstructive.

[citizenB]

Here you gh.. one POC

 

Summary, no defence has been submitted to date. Only an AoS.

 

Thanks. Where will I find their POC? Will the court send it to me?

 

Thanks for the info. As everything is on a tight time schedule now are you saying I should tell the court I now no longer wish to defend? Also forgive me as I know nothing about legal jargon so what exactly is PofC? And how would I go about asking them to provide more details? I sent a letter to them as advised on here with a CPR 31.14 request and as you can see on this thread, their reply was less than helpful and basically told me I wasn't entitled to see any documents

 

Only you can say if you wish to defend or not. If you believe you have a strong argument then defend. If you feel that you may have misinterpreted something then you may wish to reconsider.

 

Were you advised of the Assignment from Online Finance to Cabot Financial

 

What I am concerned about is the time for you to put in even an embarrassed defence. The original date had the solicitor not stuck their nose in and had it transferred early, you would have had until 27th September. You need to submit the AQ by 20th September. Are you still going to be allowed until 27th for your defence, or do you have to submit it with the AQ.

 

I imagine you could ask for the information on the AQ, and also point out that you have been disadvantaged by the claim being transferred to the local court prior before your defence was submitted.

 

I simply dont know.

[emandcole]

Ok, I'll put this up for starters and see what you guys think. I feel it may be best to attack their POC as it is woefully inadequate.

The Civil Procedure Rules require that your POC's contain a concise statement of the basis of your claim in law and fact. This should include reference to the common law and relevant statutes on which the claim relies - ie the Consumer Credit Act 1974, Law of Property Act 1925 (Due to the assignment) etc.

 

Their POC is merely a 'we want some money back' and should be re-pleaded. As for the assignment we merely ask for the Notice of Assignment at this stage and proof of postage. We all know they are unlikely to provide proof of postage but the court are likely to put that aside as long as the NOA is valid.

 

Suggest the following is submitted to the court.

 

1. My name is (Insert full name) and I am the defendant in this matter.
   
2. The defendant recognises an account with Online Finance Limited but does not recognise the listed claimant as being a lawful party to any prior contract and does not acknowledge receipt of any Notice of Assignment. The defendant therefore requests that such notice along wth proof of service is filed and served with the amended particulars of claim or any right to litigate as a third party is denied.
   
3. The Defendant will object that the Particulars of Claim in this action disclose no reasonable cause of action against the Defendant. There is no detailed allegation against the Defendant in law as to how the Defendant should be liable to the Claimant for the amount claimed making no reference to specific failures or breaches of statute.
   
4. The Particulars of Claim do not comply with the Civil Procedure Rules as (amongst other things) they do not show how the sum of (Insert amount £) was arrived at and the Particulars of Claim are too vague.
   
5. The Claimant should, therefore, be ordered to file and serve an amended claim to set out the basis in law and fact as there is no pleaded basis for the claim itself other than a simple unsubstantiated and ill detailed demand for payment.
   
6. The Defendant respectfully requests that opportunity should then be given to defend the proceedings further.
   

The claimant will re-submit their claim correctly, this time including a bit more information. Defendant to then submit a defence in order to actually get one in, very important one is submitted clearly to prevent the chances of the claimant being able to have another go if subsequent requests make them reconsider their current position.

 

We then hit them with the all the usual including the demand to see the actual Deed of Assignment, quoting Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824.

 

Knowing they are likely to have sent the NOA with an incorrect amount of money on it (as they're being greedy and insisting VS was employed as opposed to VT) we also throw W F Harrison & Co Ltd v Burke and another [1956] 2 All ER 169 as the incorrect amount (very incorrect) renders the assignment paperwork invalid.

 

Clearly there may be some work to do to prove VT was used and not VS but unless they can prove the alternative as the burden of proof is on them common sense and the fact the defendant maintains VT was used should on balance of probability be enough to send them packing.

 

Thoughts welcomed.

[citizenB]

Sounds like a plan to me emandcole

[emandcole]

Good. Will also buy more time and allow for a detailed defence to be compiled

[gareth19]

I honestly can not remember if I was informed of the transfer from OnLine Finance to Cabot as it was so long ago. I can only assume I was made aware at some point.

[gareth19]

Ok, I'll put this up for starters and see what you guys think. I feel it may be best to attack their POC as it is woefully inadequate.

The Civil Procedure Rules require that your POC's contain a concise statement of the basis of your claim in law and fact. This should include reference to the common law and relevant statutes on which the claim relies - ie the Consumer Credit Act 1974, Law of Property Act 1925 (Due to the assignment) etc.

 

Their POC is merely a 'we want some money back' and should be re-pleaded. As for the assignment we merely ask for the Notice of Assignment at this stage and proof of postage. We all know they are unlikely to provide proof of postage but the court are likely to put that aside as long as the NOA is valid.

 

Suggest the following is submitted to the court.

 

 

1. My name is (Insert full name) and I am the defendant in this matter.
   
2. The defendant recognises an account with Online Finance Limited but does not recognise the listed claimant as being a lawful party to any prior contract and does not acknowledge receipt of any Notice of Assignment. The defendant therefore requests that such notice along wth proof of service is filed and served with the amended particulars of claim or any right to litigate as a third party is denied.
   
3. The Defendant will object that the Particulars of Claim in this action disclose no reasonable cause of action against the Defendant. There is no detailed allegation against the Defendant in law as to how the Defendant should be liable to the Claimant for the amount claimed making no reference to specific failures or breaches of statute.
   
4. The Particulars of Claim do not comply with the Civil Procedure Rules as (amongst other things) they do not show how the sum of (Insert amount £) was arrived at and the Particulars of Claim are too vague.
   
5. The Claimant should, therefore, be ordered to file and serve an amended claim to set out the basis in law and fact as there is no pleaded basis for the claim itself other than a simple unsubstantiated and ill detailed demand for payment.
   
6. The Defendant respectfully requests that opportunity should then be given to defend the proceedings further.
   

 

The claimant will re-submit their claim correctly, this time including a bit more information. Defendant to then submit a defence in order to actually get one in, very important one is submitted clearly to prevent the chances of the claimant being able to have another go if subsequent requests make them reconsider their current position.

 

We then hit them with the all the usual including the demand to see the actual Deed of Assignment, quoting Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824.

 

Knowing they are likely to have sent the NOA with an incorrect amount of money on it (as they're being greedy and insisting VS was employed as opposed to VT) we also throw W F Harrison & Co Ltd v Burke and another [1956] 2 All ER 169 as the incorrect amount (very incorrect) renders the assignment paperwork invalid.

 

Clearly there may be some work to do to prove VT was used and not VS but unless they can prove the alternative as the burden of proof is on them common sense and the fact the defendant maintains VT was used should on balance of probability be enough to send them packing.

 

Thoughts welcomed.

 

Thank you so much for all your hard work and help. This sounds like a good idea as I obviously have to say something. So now presumably I complete my allocation questionnaire and send it off to the court? Also with regards to your plan do I just write that out as it is and send it to the court along with the allocation questionnaire ir is there more to it?

[foolishgirl]

I honestly can not remember if I was informed of the transfer from OnLine Finance to Cabot as it was so long ago. I can only assume I was made aware at some point.

 

Where DCAs are concerned gareth, DO NOT ASSUME ANYTHING!! You need to make them prove every statement they make or they will lie through their back teeth.

 

They issued the claim, it is their responsibility to prove they have the evidence to substantiate it, not yours to provide the evidence to disprove it.

 

I'm not sure what the court admin is up to - since when did they accept & act on a claimant's opinion that a defence would be offered?!

 

However looks as though you are stuck with their mess up & IMO EMC's defence is excellent & should be submitted asap. I would also send the following to the sols:

 

 

In the matter of Cabot Financial (UK) Ltd. v gareth

 

Claim number xxxx

 

Dear Sirs

 

Please find attached a copy of the defence by way of service. A copy has been served to the court.

 

The Particulars of Claim submitted by you to Northampton County Court are insufficiently particularised in accordance with the Civil Procedure Rules. Therefore please serve amended Particulars of Claim and plead your client’s case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial.

 

I request that you attach to the particulars a copy of the agreement upon which the claimant relies. In addition to this I would ask that copy of the default notice and assignment together with proof of service be served with the amended particulars as they are clearly relevant to your clients case and referred to with in the claim.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided.

 

YS

 

In respect of Morgan's letter re. the CPR31.14 request, this sounds like another of their templates designed to confuse & intimidate. I suggest you counter it immediately with the following:

 

I refer to your correspondence of xxxx in which you state that you do not have to comply with CPR31.14.

 

I remind of you of your obligations to permit the inspection of documents under that rule & give you notice under CPR31.15 that I require copies of all the documents referred to in your Particulars of Claim within 7 days of receipt of this request. I undertake to pay all reasonable copying costs of supplying the following documents:

 

1. the agreement (unless they have supplied it)

 

2. any notices of assignment issued

 

3. any default notices issued on this account

 

 

Failure to supply copies of the above documents within the time stipulated will result in an application being made to the court for their disclosure.

 

YS

 

You can send both letters in the same envelope but make sure you send Rec. Del.

Edited September 8, 2010 by foolishgirl

[foolishgirl]

So now presumably I complete my allocation questionaire and send it off to the court?

 

Don't you have until 20 Sept to send the AQ in?

 

If so, I would suggest waiting to see what the CPR31.15 letter produces as you may also want to ask for directions with that AQ for disclosure etc. or even put in an app for SO for non-compliance with CPR.

[emandcole]

And the plan is nicely topped off with a sprinkling of foolishgirl

 

Thanks FG. Gareth, just make sure your dates are adhered to, don't give the claimant an opportunity for a cheap attempt at summary judgment. If the AQ does have to be in for the 20th you have time if you get the 31.15 request in as FG has detailed above as long as you get that straight off. Make sure you add 'CPR 31.15 Request' clearly at the start of the letter so they can't play dumb.

 

So, you'll be sending your reply to the court as I detailed above asking that they sort themselves out and plead properly and you'll be sending the 31.15 request to the solicitor to force them to provide you with the documents you need along with a copy of the defence you've submitted to the court as FG detailed above. Trust that's all clear.

 

With any luck they'll fail to respond in time which means we can explore options to see them off nice and early. More on that if and when needed.

 

Make sure you keep proof of postage and print off the proof of receipt from the Royal Mail website once it's got to them.

Edited September 9, 2010 by emandcole

[gh2008]

totally agree emandcole

 

MY main concern at the moment is why it has got to allocation stage......

 

Gareth MUST ring the Court again and ask "how it has got to allocation stage without a defence being submitted yet".

I *think* that they have marked the case as having had a defence filed.

[gh2008]

Where DCAs are concerned gareth, DO NOT ASSUME ANYTHING!! You need to make them prove every statement they make or they will lie through their back teeth.

 

They issued the claim, it is their responsibility to prove they have the evidence to substantiate it, not yours to provide the evidence to disprove it.

 

Anyone who has 'been through the system' will have experienced this time and time again .......

 

1. the agreement (unless they have supplied it) - quote their wording in the POC i.e. Motorloan Reference whatever

 

2. any notices of assignment issued

 

3. any default notices issued on this account I would use their wording of Demand for Payment as strictly speaking they do not refer to a DN

 

 

Failure to supply copies of the above documents within the time stipulated will result in an application being made to the court for their disclosure.

 

YS

 

You can send both letters in the same envelope but make sure you send Rec. Del.

 

You *must* as FG rightly says make the CPR request a separate letter.

[emandcole]

Yeah, it is odd and although on the grand scale of things it may seem fairly insignificant it is at the same time a really big deal. Gareth, see what you can find out, make a bit of noise about this and ask what they can do to 'put things right' given the fact that hoops have been jumped on your behalf.

 

Think of it this way - If you'd rung the court and said 'Oh, the claimant has decided to discontinue' would the court have gone 'Oh ok, thanks for letting us know' and pulled the case? Course not. Only you are entitled to make decisions on your own behalf, especially with something as important as this.

 

Might be useful for costs later on though if we can force them to discontinue. Think its CPR 44.4 or 7 on misconduct...on the grounds that their conduct during litigation was irregular and prejudiced the normal time line the defendant should have had. On a good day a judge might go for it as an additional consideration to any discontinuance but we're jumping ahead a bit here. Let's see what is sent back.

 

I'm guessing it was a statement from the claimant of some sorts to the court that instigated this quick progression straight to AQ's, perhaps they were hoping Gareth would be rushed, not know what to do and mess it up?

 

Either way it needs resolving. See what you can find out Gareth and be prepared to make a formal complaint to the Court Manager if they give you a load of waffle.

 

You're not represented by any other party, as such only you can submit anything about your case and a third party should not have been able to intervene like this and suggest what is likely to happen with the court following along blindly with its tongue hanging out!

Edited September 9, 2010 by emandcole

[gareth19]

Ok so I will send the CPR31.15 letter today by recorded delivery. Am I correct in thinking that I should,not send the defence letter yet? As soon as I get a reply to my CPR31.14 letter I will post it up to people can see. Once again I can not thank you all enough for all you help!

[gareth19]

Also as suggested I will keep enquiring with the court as to the aq. However at the moment do I need to be sending anything into the Court yet or is it just a matter of sending the CPR31.15 letter to Morgan's and waiting?

[emandcole]

You can send the 31.15 and copy of defence to Morgans asap. You can also submit the defence to court now...you have requested permission to amend this defence once the claimant has sorted themselves out. Make sure you obtain proof of some kind that your defence has gone in, just in case.

 

On CAG if you ever wish to thank any contributors to your thread you can click on the little black star thing in the grey bar at the bottom of each post. This allows you to leave a message if you wish and clicking on it adds a few points to the posters reputation. That's how each contributor builds the green bar thingy next to their names

 

You'll notice that foolishgirl, gh2008 and citizenb (amongst others on the forum) are particularly helpful!

[foolishgirl]

You'll notice that foolishgirl, gh2008 and citizenb (amongst others on the forum) are particularly helpful!

 

You're not so bad yourself EMC! :-)

 

Sound advice from EMC here for you too, gareth.

[emandcole]

You're not so bad yourself EMC! :-)

 

Aw, shucks