Carter's V MySon

[adelaidebull]

To start my son received a claim form from Northampton (CCBC) 24/05/2010 off Bryan Carter on behalf of Phoenix Recoveries.. Total Claim is for £400...

So straight away we signed into the MCOL web site to file the Acknowledgement of service 28/05/2010....

Next we send a letter asking for information under the Civil Procedure Rules..

It was send recorder delivery and delivered to Carters on the 04/06/2010

Then we received a letter off Carters but not the one we was looking for it was a pre litigation letter giving 48 hours to pay off the total debt dated 25/05/2010...

So we ignored that letter but today we received another one:

 

Dear Sir/Madam

RE: PHOENIX RECOVERIES (UK)SARL V YOURSELF

CLAIM NUMBER:

ACCOUNT NUMBER:

OUTSTANDING BALANCE: £440

 

Thank you for your recent letter the contents have been noted.

 

We do not consider that your request in it's entirely, to be reasonable as we believe this matter should most properly be allocated to the small claims track. It was our Client's policy to issue agreements on or around the date of the contract and statements throughout the duration of the agreement.If you require further copies of the same please write to our client direct at Credit Account Management,2nd Floor Persimmon House,Brooklands Business Park, Weybridge, KT13 0NT.

In the meantime we have referred your request to our client and will revert to you in due course..

yours faithfully.

Bryan Carter

 

.......................

My questions are:

1.Did i send the wrong request for information?

2.Why are the client in Luxembourg to start will but in the same building now?

3.What are my next set of options ?

4.When can i file for an embarrassed defence and how would i word it....

 

thank you in advanced for any advice

[cerberusalert]

Moved to Legal Forum

[NailPost]

Don't be fooled by this letter. You have been sent court papers following a claim issued by BCarter Ltd. You have acknowledged service and these cretins have now confirmed, in writing no less, they don't have the necessary paperwork they should have had when they fired off the claim to Northampton. Dummies or what. They are now in deep doodoo because the claim will proceed as usual and the next you'll hear from the court will be notification of the case being transferred to your local county court. When the time comes to file your defence this letter from Carter will be of importance to this as it will show the judge Carters were, and probably still are, playing silly beggars. However I doubt very mch if it will come to that because at the first whiff of any opposition Bryna usually cries off and discontinues. Then is the time to go after him for your wasted time.

[adelaidebull]

thank you for the reply,

but i still have a few questions about when do i file a defence and how will i word it proper...

[sillygirl1]

Copy ANY letters from Carters to the Court Manager at Northampton, he is a slippery person and needs to be shamed.

 

He races to court in batches and hopes people will roll over and accept the CCJ, the alleged debt is probably a LOT less than he owes.

 

How I wish Northampton would get somebody to actually look at these spurious claims from 'jobbing' soilictors and see how many actually comply with pre-court protocols.

 

I hope you win against this clown.

 

You should now also copy his letter to Trading Standards via Consumer Direct as a complaint against him, I know he is a solicitor but Trading Standards can help make him toe the line.

 

Any further letters from him need to be copied to the court and kept as part of his intimidating tactics (and his incompetency).

[DonkeyB]

I would write again stating that he is failing to comply with your legitimate CPR request, and that his correspondence will be shown to the court. A case is regarded as multitrack until a judge says otherwise - it is not up to Carter to decide the track. He is bound by CPR to comply.

 

It's worth doing this, because you can then show the court you do not know what case you have to answer, and that you have made strenuous efforts to find out. It will also make for further excellent ammunition when another complaint goes in to the SRA, TD, OFT etc...

[adelaidebull]

thank you for all the replies...

Received another letter yesterday(postman put it through the wrong door)..

this is giving my son the chance to pay off this alleged debt and stop the count action..

First thing Monday I'm writing to the Northampton Count Manager and will be speaking to trading standards...

I will be complaining about the failing to comply with the CPR request...

 

After I do this do I file an embarrassed defence or wait till the last minute to do it?

[sillygirl1]

Dont leave it to the last minute to do a defence, they will sneak in under the wire and get a judgement by default, somebody else will be along soon with the right type of defence - I don't think it is an embarrassed one you need now, more of a holding defence to give them time to find the proper paperwork....

[adelaidebull]

I was re-reading the POC and its strike's me as being a little vague...

 

The claimants claim is for goods sold and delivered by the claimant to the defendant.

 

Particulars

 

claimant's a/c no***********

To goods sold between **/**/03 and **/**/08

and the claimant claims ***.**

 

thens there's the interest claim...

 

When i file a defence do i point out this vagueness or do i get in contact with the court and complain?

 

thx in advance for any replies

 

also i'm having trouble wording a defence any help there would be grateful...

[DonkeyB]

Well, Phoenix does not supply goods. Error number one!

[adelaidebull]

In reply to your letter dated 11/06/2010,i must inform you it’s my legal right under Civil Procedure Rules for you to forward to me all the documents i have requested,its not upto you to decide that the claim will be allocated the small claims track only a Judge can decide that.

I am therefore giving you 7 Days to fullfill this request,if the request is ignored i will have no choice but to enter an Embrassed Defence and forward all letters to the Court Manager and Trading Stanards.

Yours Faithfully,

 

 

Does this type of reply sound ok?

[DonkeyB]

You're on the right tracks - have a trawl through PT2537's excellent thread on starting out in litigation. Even if you only read the first few pages, you will learn a lot about WHY we do things in certain ways, and how you can actually go on the attack with idiots like this.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

Donkey

[adelaidebull]

thank you,reading that thread does point out a few things that interest me...

1. the POC is very vague plus my son was 15 at the start of said goods received,and i have an understanding that between the ages of 14-18 there has to be a guarantor,and i can be sure with my credit rating i would never be accepted(i have a CCJ which is 10 years old) ..

2. Getting the court to force them to comply with a CPR...

 

Now i unsure about how to go about doing it,could i file an embrassed defence and ponit out the short coming in the POC and ask the courts to force compliance with the CPR...

cheers Adey

[DonkeyB]

What is the alleged debt for? Sorry if I've missed that bit.

 

It is wholly significant to the case that he was 15 when the goods were supplied. This is a deal breaker for them. Give us more detail about the alleged debt.

[adelaidebull]

we have no idea....

Waiting on his credit reference file to arrive to see if that can help us

Edited June 15, 2010 by adelaidebull
adding more info

[DonkeyB]

Then how do you know he was 15 when he started receiving whatever this is?

 

I bet your assumption relates to the particulars of claim - they are usually vague. Did it say something like 'goods supplied between Date A and Date B'? That doesn't necessarily mean he was 15 at the time of the alleged transaction, but it would be a nonsense PoC. How old is he now?

 

Can you post the PoC with personal details removed? We need as much info on this as you can give us.

 

When you first got letters from Carter, you should have been asking what it's for with the 'bemused' letter. But we'll get round that.

[adelaidebull]

The claimants claim is for goods sold and delivered by the claimant to the defendant.

 

Particulars

 

claimant's a/c no***********

To goods sold between **/**/03 and **/**/08

and the claimant claims ***.**

[DonkeyB]

Apologies, just saw the PoCs earlier in the thread. I'm tired today... need a lie down in my stable.

 

So, your son was 15 in 2003? Is that how you reached the conclusion? Sure it is. Cases like this are usually for catalogue (eg. Littlewoods, GUS, which should have contracts covered by CCA) or mobile phone accounts (which do not).

 

Need some good practice here. A bit of creative Cagging to put Carter on the back foot. I'm predicting a discontinuation after AQs are filed - that's how he avoids costs.

 

He has also sent a pre-litigation letter after issuing a claim. Bad practice, and one for a complaint to the SRA. We'll get you struck off yet, Carter!

 

We need to write to Carter and demand again your rights under CRP31.14 and also to demand to know what the claim is for. We'll give him a chance to restate the PoCs, providing a cause of action, otherwise an embarrassed defence will be well and truly valid. Generally it's best to avoid an embarrassed defence if at all possible.

 

We'll copy all these letters to the court (as suggested by sillygirl) so they can be added to the case file. The judge will then see that you have followed a fair course of action and tried to resolve the issues.

 

Can you tell us the content of the CPR letter you sent to Carter?

 

Horribly busy at the moment - will draft something asap.

Edited June 15, 2010 by DonkeyB

[adelaidebull]

i found one on this site and used it:

 

 

ACCOUNT IN DISPUTE

Dear Bryan Carter,

 

I acknowledge receipt of Court papers sent by Northampton BCC on **/**/2010which was received on **/**/2010.

Please be aware that any proceedings will be extremely vigorously defended and that a counterclaim will be made against Bryan carter. I am unable to respond further at this time, since you have given me inadequate information to investigate the claim. Please note that under the Overriding Objectives, you have a duty to act reasonably at all times.

As you are aware, under the pre-action protocols of the Civil Procedure Rules, your Letter Before Action should have included the following information:

4.3 The claimant's letter should —

(a) give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b) enclose copies of the essential documents which the claimant relies on;

© ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

(d) state whether court proceedings will be issued if the full response is not received within the stated period;

(e) identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

(f) state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

(g) draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

I note that your letter failed to enclose copies of the essential documents upon which you will seek to rely, failed to ask for acknowledgement of the letter, failed to ask for a written response within a reasonable period of time, and did not draw attention to the courts powers

to force all parties to comply with the practice direction.

I intend to provide you with a full written response, but as yet I have not got adequate information to investigate your claim.

To enable me to investigate this claim I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

If you fail to disclose this information, I may apply to the court under part 18 and part 31 of the Civil Procedure Rules.

I will be unable to respond to your claim without this information, and by failing to supply it before starting legal action you would breach the overriding objective of the Civil Procedure Rules.

Request for disclosure;

I request that you send me information vital to investigating your claims, including:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor.

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual

intervention in relation to my account formerly held with ** CREDITOR **.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

3. Any other documents you will seek to rely upon in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

Please note, I will respond to your claim in full within 14 days of your providing this information. I must advise you that if the information is not forthcoming, or if you start proceedings without furnishing this information, it will be reported to the Court that you are denying me the opportunity to settle this matter amicably.

I would appreciate your due diligence in this matter.

You have 10 days, to furnish me with this information or l will be reporting this to the courts.

I await your rapid response.

Yours Faithfully,

[DonkeyB]

Maybe without realising, you've half-done a lot of what we have been suggesting with this letter.

 

His referring you back to his client (which he hasn't actually, just their agent) is therefore all the more revealing and incriminatory of his total disregard for proper legal practice.

 

On the case...

[adelaidebull]

I was about to send a reminder today...

 

 

Dear Bryan Carter,

 

CLAIM NUMBER ********

 

In reply to your letter dated **/**/2010,i must inform you it’s my legal right under Civil Procedure Rules for you to forward to me all the documents I have requested, it’s not up to you to decide that the claim will be allocated the small claims track only a Judge can decide that.

I am therefore giving you 7 Days to fulfil this request, if the request is ignored I will have no choice but to enter an Embarrassed Defence and forward all letters to the Court Manager and Trading Standards.

Yours Faithfully,

 

 

 

 

Copy of original letter underneath here...

[adelaidebull]

My son had a call from consumer direct today and they took more inform and then said trading standards will phone in a few days...

 

I could do with some help on writing a defence please...

[DonkeyB]

Apologies... we'll get this done over the weekend.

[adelaidebull]

Would this be ok as a defence?

I need to file in a few days ....

 

 

The Defendant is unable to plead due to the Claimants failure to comply with its CPR 31.14 duties in disclosing all of the requested documents

 

The Defendant is embarrassed at the lack of detail within the claimants claim and therefore cannot plead due to the Claimants ongoing failures.

The Defendant reserves the right to amend this defence and intends to make an application to the court for an order compelling disclosure.

 

Claim number: xxxxxxxx

 

Between

PHOENIX RECOVERIES (UK) LTD S.A.R.L.

 

And

 

xxxxxxxxxxxx

 

1. xxxxxxxxx of xxxxxxxxxx am the Defendant in this action and make the following statement as my defence to the claim made by PHOENIX RECOVERIES (UK) LTD S.A.R.L.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

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

 

4. 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 (even allowing for the constraints of the bulk issue system).

 

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.

 

b) I would like to point out that on the dates this sum is claimed for xxxxxxxx i was only 15 years old so was unable by law to sign any CCA...

 

 

c) No particulars are offered in relation to the nature of the good’s supplied

 

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

 

5. 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;

 

6. Consequently, it is proving difficult to plead to the particulars as matters stand.

The Request for Disclosure

 

7. Further to the case, on xxxxxxxx I the Defendant requested the disclosure of information pursuant to CPR 31.14, the claimants solicitors replied with a letter (see Letter A), on the xxxxxxxx a second request for the disclosure of information pursuant to CPR 31.14 was sent and received to the claimant. On **/**/2010 the Defendant received no documents from the CPR 31.14 request for disclosure.

 

8. To date I have not received any documentation requested under the CPR, as a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

9. In view of the matters pleaded above, the Defendant respectfully requests that the Court gives consideration as to whether the Claimant’s Particulars of Claim should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

11. 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 Procedure Rules:

 

11.1 A copy of any executed Agreement they rely on to prove 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;

 

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

 

11.3 A copy of any Default and/or Termination Notice they rely on to prove the Particulars of Claim and issued under the terms of any such executed Agreement;

 

11.4 A statement of account, signed by or on behalf of the Claimant showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the debtor to the creditor, and

- the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor;

 

11.5 A transcript of all transactions, including charges, fees, interest and alleged repayments;

 

11.6 A full breakdown of how the sum claimed has been calculated and what goods where supplied and what dates they where delivered on and where;

 

11.7 Any other documents the Claimant seeks to rely on.

 

Conclusion

 

13. In view of matters pleaded I respectfully request that the court order the claimant to produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

14. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant unenforceable.

 

15. The claimant's case cannot succeed as matters stand. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

16. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

17. I respectfully ask the permission of the court that I be allowed to amend this defence and counterclaim when the claimant provides full disclosure of the requested documents and allows inspection of the original documents.

This claim should never have been brought before the court as the claimant would most certainly be aware of the case law quoted and that such action would have little prospect of success without the credit agreement or a copy of it, therefore I invite the claimant to give serious consideration to withdrawing this claim. Should the claimant fail to withdraw their claim I shall request the court consider costs incurred by the Defendant in defending this claim and shall forward a schedule of costs for the court to give consideration to should this proceed to trial and judgment be given in my favour.

 

Statement of Truth

 

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

 

Signed

Date xxxxxx/2010

[DonkeyB]

When exactly is your deadline for filing? Should be 32-33 days from the date on the claim form...