Help! - Marks & Spencer Financial Services Court Claim Received

[goodie000]

Hello googie000!

 

Don't cut them any slack, I'd remind them by way of an N244 Application asking the Court to Order that they comply with your CPR 31.14 Request...

 

 

Hi banker_rhymes_with,

 

Thanks for stopping by and giving some input.

 

How do I go about doing this, where do I get the form and how much will it cost?

 

Also, do I have to wait until they do not respond to my reminder 31.14 letter or can I do this now?

 

Thanks in advance!

[goodie000]

Hi Debbbbsy,

 

Thanks for your post.

 

It certainly sounds like a similar claim.

 

Just wondering what my best course for defence would be now. I have illegible agrrement and terms, defective default notice and also the fact that I never really signed up for a &more credit card, just an M&S account card!

 

Will give your thread a thorough going over.

 

Anyone got any ideas regarding the wording for my defence base on the above criteria?

 

I've got a couple of threads to look over so hopefully will turn up some good info.

 

Thanks again!

[debbbbsy]

Hi,

If the reference numbers on the claim form & your storecard application are different, don't even mention in your defence to the courts that they have provided it. Instead, your defence is they have not provided you with the agreement they refer to in there claim under credit card ref no.XXXXXXX, and which they rely upon to enforce judgement.

[banker_rhymes_with]

Hello Goodie000!

 

How do I go about doing this, where do I get the form and how much will it cost?

CPR Forms are all Free to download, here should get you to them:

 

CPR Forms

 

You'll need to check this, but I think an N244 Application costs around £75 to make, although if your income is low, you may be exempt Court Fees.

 

There are other Forms handled by HM Court Service, and the one for Court Fee Exemption is EX160, see below, which also includes the Guidance Notes to establish if you are exempt fees:

 

EX160

 

Also, do I have to wait until they do not respond to my reminder 31.14 letter or can I do this now?

To be totally fair, establish what Deadline you have given them and, once they step over that without allowing you to inspect the Original Agreement, then go for their throat via N244 asking the Court to Order this.

 

The key is to set Deadlines, and then stick to them like glue. Never give them the impression that your Deadlines are fluid and weak.

 

Cheers,

BRW

Edited February 20, 2010 by banker_rhymes_with
Typo

[debbbbsy]

Hi you don't need to do an N244 to force them to comply with your cpr request.

This is what happens.

1.you file your defence to northampton.

2.They totally ignore your defence, & even though they don't have the agreement will proceed with the claim.

3.The case is transferred to your local court. You recieve your AQ.

4.You get letter from M&S solicitors, suggesting you withdraw your defence & enter into an arrangement with them, otherwise you'll have lots of court costs.

5.You write back, advising them to withdraw the claim, or you'll hit them with a wasted costs order.Mention OFT ruling.

6.you respond to the AQ.You submit a "Draft Directions".

7.The judge Directs M&S to suppy to you & the courts the documents they refer to in the claim.They have 14 days.

8.Unable to supply the credit card agreement, they should withdraw the claim.

 

Debs

[angel_1]

hiya all

 

another informative thread - keep positive all

 

have subbed

 

laters angel x

[vint1954]

Hi Debbbbsy,

 

Thanks for your post.

 

It certainly sounds like a similar claim.

 

Just wondering what my best course for defence would be now. I have illegible agrrement and terms, defective default notice and also the fact that I never really signed up for a &more credit card, just an M&S account card!

 

Will give your thread a thorough going over.

 

Anyone got any ideas regarding the wording for my defence base on the above criteria?

 

You cannot file a full defence if you do not have the documents mentioned in their POC, so your defence would be short and embarrassed.

As BRW mentions below, you can demand complience with CPR by using N244, for an order to provide the documents or strile out the case.

If you search for BRW's posts, it is explained in great detail and the resons for not letting it limp into court without these docs.

 

I've got a couple of threads to look over so hopefully will turn up some good info.

 

Thanks again!

Also think about:

 

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.

[goodie000]

Hi Vint,

 

Thanks for the input!.

 

Just to recap:

 

Court letter dated 03/02/2010

Court letter received on 006/02/2010

Date of Service is 08/02/2010

Acknowledgement of service online on 08/02/2010

CPR 31.14 letter sent 09/02/2010

CPR 31.14 reminer letter sent 19/02/2010

 

Embarrased defence due by 08/03/2010 (is that correct? and if so should i be looking at getting this submitte by 01/03/2010 i,e 1 week before due date?)

 

Also When should I send the N244 to the court? before or after I submit my defence i.e 26/02/2010?

[goodie000]

hiya all

 

another informative thread - keep positive all

 

have subbed

 

laters angel x

 

hi angel_1

 

Thanks for stopping by and reading my thread.

 

goodie

[debbbbsy]

In the Northampton county court (CCBC)

Claim number *********

 

 

Between

 

 

 

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

 

 

 

 

 

And

 

 

 

 

 

 

 

************* - Defendant

 

 

 

 

Defence

 

 

 

 

• I, ********** of ************** make this statement as my defence to the claim brought by **************
  
• The defendant denies entering into any agreement with Santander Cards UK Ltd. & put the claimants to strict proof of this by production of a copy of the alleged credit agreement.
  

• No documents supporting the claims in the particulars have been offered and despite a request to the claimant under CPR31.14 on xxxx for further information none has been forthcoming and as a result I cannot plead in defence to the claim.
  
• The defendant denies receipt of a default notice in connection with this claim & the claimant is put to strict proof that any such document was sent to the defendant
  
• The claimant is claiming interest pursuant to Clause 7 of the agreement. The defendant requests the claimant produce a copy of this agreement in order that this clause can be verified.
  
• The defendant is not aware of any assignment that may have taken place in connection with this claim & puts the claimant to material proof that such an assignment exists by way of production of any Deed & Notice of Assignment of this alleged debt.
  
• Without clarification of the claimants claim, the defendant is extremely disadvantaged and this claim appears without merit
  
• The defendant is unable to plead effectively or at all. The defendant is embarrassed.
  

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

__________________

 

 

Use this, just amend to suit. Good Luck

Debs

[vint1954]

Hi Vint,

 

Thanks for the input!.

 

Just to recap:

 

Court letter dated 03/02/2010

Court letter received on 006/02/2010

Date of Service is 08/02/2010

Acknowledgement of service online on 08/02/2010

CPR 31.14 letter sent 09/02/2010

CPR 31.14 reminer letter sent 19/02/2010

 

Embarrased defence due by 08/03/2010 (is that correct? and if so should i be looking at getting this submitte by 01/03/2010 i,e 1 week before due date?)

 

8th March is the last date to submit the defence. I would be inclined to do this before 4pm on the 5th March, just to be sure.

 

Also When should I send the N244 to the court? before or after I submit my defence i.e 26/02/2010?

 

What will happen after you submit your defence is that the court will forward this on to the other side and advise you that this has been done. They then have 28 days plus 5 to respond to your defence, or the case is stayed until they respond. They will then, after this time, need to apply to the court to have the stay lifted.

 

Be careful about their responses after your defence is submitted. The other side will often not respond to your CPR, or respond directly to you, in response to your defenece. This makes it appear that you should respond to them and not the court. Not so.

 

Their response needs to go back to the court, as does yours. The court will forward this on to the other side. They use these tactics to try and find out what your defence is, or to insinuate that you have not responded, then go for a summary judgement. Crafty beggers, so watch them and do everything through the court.

 

After their 33 days following your submitting your defence, then is the time to use N244 for a stile out, or in the alternative an order to supply the documents that you need to file a full defence.

 

Just keep a careful eye on the dates and actions required by you and them, plus their responses. Don't let it Drift.

 

You should next consider a CPR 31.15 application to the Claimants Solicitors, to inspect the documents, on or about the 25th of this month.

 

Vint.

[vint1954]

You can adapt this CPR 31.15 letter to suit.

 

Dear Sir,

 

Re: xxxxxxxxxxxxxx v xxxxxxxxxxx Case No:xxxxxxx

CPR 31.15 Request

Further to the above case number, I have sought a copy of the original agreement that you mention in your POC. Despite numerous requests under CPR 31.14, you have failed to supply this document.

In an attempt to again resolve this issue, I now require sight of the original executed agreement, as I am allowed to do under CPR 31.15.

You will note that under this rule, you must allow me inspection or the original document within 7 days of the date of this letter.

 

I look forward to your urgent response.

 

Yours faithfully

[vint1954]

Your embarrassed defence could just be 2 lines basically stateing that you cannot defend as the other side have not given you the documents

 

1. The Particulars of Claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

or:

 

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

 

Except where explicitly stated below the Defendant neither admits nor denies any of

the assertions or claims made by the Claimant.

 

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 particularized 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 nature of the written agreement

referred to, the method the claimant calculated any outstanding sums due, or any

other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement and Default Notice, 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 filed and served.

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 filed and served.

 

d) A copy of any termination notice served under Consumer Credit Act on the alleged

account, has not been filed and served.

 

It is averred that the claimants claim is vexatious and is an abuse of the court

process.

 

4. I respectfully request the courts permission to submit an amended defence should

the claimant file a fully particularized Particulars of Claim and following the

supply of documents to myself, requested under CPR 31.14, which are vital to my

defence.

Edited February 22, 2010 by vint1954

[goodie000]

Your embarrassed defence could just be 2 lines basically stateing that you cannot defend as the other side have not given you the documents

 

1. The Particulars of Claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

or:

 

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

 

Except where explicitly stated below the Defendant neither admits nor denies any of

the assertions or claims made by the Claimant.

 

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 particularized 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 nature of the written agreement

referred to, the method the claimant calculated any outstanding sums due, or any

other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement and Default Notice, 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 filed and served.

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 filed and served.

 

d) A copy of any termination notice served under Consumer Credit Act on the alleged

account, has not been filed and served.

 

It is averred that the claimants claim is vexatious and is an abuse of the court

process.

 

4. I respectfully request the courts permission to submit an amended defence should

the claimant file a fully particularized Particulars of Claim and following the

supply of documents to myself, requested under CPR 31.14, which are vital to my

defence.

 

Hi Vint,

 

Thanks for the input. CPR 31.15 letter being posted tomorrow (26/02).

Are there any advantages or pitfalls for submitting the longer embarrassed defence above?

[diddydicky]

you seemed to have overlooked the fact that the demand dated 26/8/09 was an unlawful repudiation in that they demanded you pay the full outstanding balance of the account!!! (not the outstanding arrears)

 

i would look very carefully for a copy of any letter you may have sent in response accepting their unlawful rescission

 

the defective DN is irrelevant if you accepted the unlawful rescission as it would have been served post termination

[diddydicky]

i would submit embarrassed defence then go for a strike out on

 

a/ not permitted to enforce due to failure to comply with s78

b/ Unlawful rescission

 

cpr 3.4.(2) (a) construction of documents and /or practice direction 3 part 1.7

 

IMO

[goodie000]

Hi diddydick,

 

Thanks for your post

you seemed to have overlooked the fact that the demand dated 26/8/09 was an unlawful repudiation in that they demanded you pay the full outstanding balance of the account!!! (not the outstanding arrears)

does that mean that because they have demanded the full amount before termination that they can ask for the full amount or does this simply mean that if it is found that their default notice is defective then potentially there is no liability for the the arrears or the full balance because of the termination?

 

i would look very carefully for a copy of any letter you may have sent in response accepting their unlawful rescission

what would constitute as acceptance of their unlawful recission? the only response i made was a letter thanking them for their letter and telling them that their letter was a breach of the consumer credit act 1974

 

the defective DN is irrelevant if you accepted the unlawful rescission as it would have been served post termination

not sure this is applicable but again, what would constitute as acceptance?

[diddydicky]

What is normally required from an injured party when the creditor rescinds is for you to "do some thing or act" which indicates you have accepted their unlawful rescission

 

writing confirming you received it and then not paying them anything would be close enough i think

 

i might be inclined (just to make sure another confirmation of the unlawful rescission hits their files) to write something along the lines of

 

dear sirs

 

i refer to your unlawful rescission of the above agreement and my acceptance of it in XXXXXXX 2009

 

I am still awaiting confirmation of the exact amount of genuine arrears that were outstanding at the time that you unlawfully terminated the agreement

 

the figure that you quoted in the invalid default notice (which was served post termination) cannot with respect be correct

 

Until i get this accurate information and take advice on the scope and amount of any counterclaim i may have against you for your unlawful rescission, i cannot deal with the matter further

 

 

yours sincerely

 

 

 

 

they will not respond (which would be ideal) and that letter would then be in your files and theirs and at any future hearing the judge would want to know why they did not respond if they didnt agree

 

BTW do NOT send it by recorded delivery (when people receive recorded delivery letters they assume it contains something important and that needs addressing)

 

simply get a (free) proof of posting slip and staple it to your copy

Edited February 26, 2010 by diddydicky

[goodie000]

hi diddy

 

dear sirs

 

i refer to your unlawful rescission of the above agreement and my acceptance of it in XXXXXXX 2009

 

I am still awaiting confirmation of the exact amount of genuine arrears that were outstanding at the time that you unlawfully terminated the agreement

 

the figure that you quoted in the invalid default notice (which was served post termination) cannot with respect be correct

 

The DN was dated 11/08/2009 and I received a final demand dated 26/08/2009 how can the figure quoted in the invalid DN be post termination I did not receive it after 26/08/2009?

 

Also is the final demand classed as termination of the account?

[diddydicky]

i apologise - i thought you had said that the DN was in November , i see that the DN was in august, however it is still invalid as they terminated the agreement on 26th August i day before the time in which they SHOULD have given you to remedy

 

ie notice dated 11th served (first class = 13th) 14 clear days- 27th

[goodie000]

Hi All,

 

I did not submit my defence for this claim in time as I had issues with my relationship (police and domestic violence unit involved).

 

This issue caused me to miss the deadline for submitting my defence and subsequently M&S /DG Solicitors gained a CCJ by default.

 

I subsequently buried my head in the sand and got a debt management company to act on my behalf because I had bigger issues on my mind.

 

I have recently been issued with a variation order from my local courts in favour of monthly installments to M&S.

 

Can anyone give any advice on what I should do to tackle this CCJ as M&S have a defective DN and unenforceable agreement.

 

Would my local court take into consideration my police incident of domestic violence as my reason for not submitting a defence?

 

Any help would be greatly appreciated

 

Thanks in advance

[banker_rhymes_with]

Hello Goodie000!

 

I regret I do not know the best way to tackle this, but I think a letter to the Court asking for the default Judgment to be Set-Aside, if backed up by a very comprehensive letter of explanation, might work.

 

I would also try and obtain some form of confirmation from the Police that the issues did happen at that time, because that will go a long way towards the Court taking any Set-Aside request seriously.

 

Say that you did have a reasonable prospect of defending yourself, but events beyond your control denied you that opportunity.

 

In the interests of fairness and justice, the default Judgment should be Set-Aside to allow you to address the Claim.

 

Others may join in and help you with better advice, but that is how I would tackle it.

 

I hope this helps.

 

Cheers,

BRW

[Monty2007]

Dear Goodie000

 

Thank you for your PM. You have more expert CAG Members than me helping who have direct experience of English jurisdiction. I would be able to help more if this were a Scottish action since I know the process North of the border. I have never defended in England.

 

I think BRW has made a good suggestion in getting this set aside. You have good grounds for this.

 

Best of luck!

[banker_rhymes_with]

Hello Goodie000!

 

Just a CAG Link that may help:

 

http://www.consumerforums.com/resources/templates-library/51-guidance-notes/620-applying-for-a-set-aside

 

Cheers,

BRW