MONTY v CREATION FINANCE

[MONTY]

Hi Monty, have you sent the above ? You could always say that you are prepared to receive their proposals by email or fax as this way you will have a record of what has been discussed.

 

 

Then set up a hotmail email address that you can discard after this has all gone away.

 

Thanks CitezenB,

 

No, the letter has not gone yet. As ever, you make some valid points. The main thing is they are not going to get away with implying that I am being unreasonable when all I want is a formal record of all communications.

 

Monty

[MONTY]

Today I received from Drydens "by way of service" a copy of Creation's AQ. In the same they have requested a Stay of one month and have indicated the small claims track as the most suitable track for their claim - all good so far.

 

Under Section C they maintain they have complied with Pre-Action Protocols - Oh no they have not.

 

Then in Section G, under 'costs' they inserted their estimated, overall costs (a very large amount!); they have done this despite suggesting the smal claims track.

 

More as it happens.

 

Monty

[cerberusalert]

Moved to legal forum as requested.

[MONTY]

Moved to legal forum as requested.

 

Thank you Cerberusallert

[MONTY]

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=210910-pg1Drydensreconstitutedinerror.jpg

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=210910-pg2Drydensreconstitutedinerror.jpg

 

The attached links show the most recent letter from Drydens. In this letter they admit that the original reconstituted agreement they provided was incorrect.

 

It appears that they now want to cite a new reconstituted agreement, not mentioned in the original POC, which refers to the point when the account was transferred from Ikano Finance to Creation. They have amended their generic application to reflect a different address, which they maintain was my home address at the point the account was transferred to Creation.

 

Points & Questions:

 

1. Having cited one agreeement dated 1999 in their POC can they now change this for a purported agreement which the claim became effective on 'Notice of Transfer' in August 2004?

 

2. I think that the oringinal agreement date of March 2009 is the effective date. I do not recall ever receiving a 'Notice of Transfer', I cetainly did not sign a new ageement with Creation. They have provided what they allege to be a reconstituted 'Notice of Transfer'. I will hold them to strict proof that this was ever sent to me and I will still require to see the Deeed of Asignment.

 

3. The new address they have provided on the revised, alleged reconstituted agreement does not reflect my address at the date they now refer to as when the account was transferred to Creation from Ikano - any basic electoral register search will show this.

 

4. Their claim again still seems inadequate and must now be bordering on vexatious. Ifeel also that Drydens may not be acting strictly in accordance with section 10 of the Solicitors Code of Practice.

 

Please, can someone advise?

 

Monty

Edited September 23, 2010 by MONTY
grammar

[MONTY]

I thought perhaps a letter along the following lines:

 

Dear Sir,

 

Reference: Creation Financial Services-v-xxxxxxx xxxxxxxxxx Claim No. xxxxxx

 

Thank you for your letter dated xx xxxxxxr 2010, the contents of which I note.

 

I wish to draw your attention the first paragraph of my letter dated the xx xxxxx 2010. I am at a loss to understand how you interpret this to be a ‘…refusal to enter “without prejudice’ negotiations…’ I reiterate, I am of the opinion that there should be a formal record of all communications between us. As such, all communication should be in writing.

 

With regard to the content of your letter, I wish to draw your attention of the Solicitors Code of Practice, in particular to Section 10, and would ask you conduct yourself in accordance with the same.

 

As you will see from my defence, and as reiterated in my recent submissions the Court, I do not believe your client has a legitimate claim and put him to strict proof thereof. I should not have to remind a Solicitor of your client’s position. After several informal and formal requests for documentation your client’s claim is based upon, you now admit that the core of your clients Particulars of Claim are reliant upon a dubious, alleged agreement (you cannot decide whether it is a Credit Card or a Store Card agreement) and Default Notice which you cannot produce. Even your attempts to produce accurate reconstitutions of the same are woefully inadequate.

 

Please be assured that should your client proceed with their claim I will robustly defend the same and seek full costs should the Court decide in my favour. For clarity, I suggest to you that by pursuing a claim that has little or no foundation it is your client who is wastefully incurring the time of the Court Service and not I.

 

Yours faithfully,

 

Drydens have rsponded

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=240910-DRYDENS.jpg

 

Can anyone offer some advice please?

 

Monty

[MONTY]

Drydens have written with an offer of settlement. I want to respond saying, if their client drops their claim I will not persue them for costs and will not counter cliaim

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=240910-DRYDENS-OFFEROFSETTLEMENTPG1.jpg

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=240910-DRYDENS-OFFEROFSETTLEMENTPG2.jpg

 

Monty

[MONTY]

AQ received today. Allocated to the Court Drydens requested. I will request it is reallocated as part of my AQ (Section B)

 

Monty

 

I have just received a copy of a letter to Drydens from the Court. Basically, Drydens have failed to submit their AQ on time, which is strange as I received a copy. Drydens have until 4pm on 1st October to file their clients AQ or the claim will be automatically struck out.

 

Monty

[IdaInFife]

still aware you needing help.

 

on the dealing with debt in scotland forum. AFW just won her case last week against creation

[citizenB]

Hello Monty,

 

I fail to see what Drydens are playing at ?

 

They are trying to introduce new evidence by way of a 2nd reconstituded document, yes ?

 

Would they not need to apply to the court to introduce new evidence ? I am puzzled as to their reference to Carey/HSBC. Waksman did say they could resonstitute for the purposes of s78. But that the original still needed to be produced in the event of litigation.

 

I am pretty certain that the Waksman didnt count on a creditor having several stabs at it either. They get the first copy totally screwed, you point this out to them, they create a 2nd copy.. which apparently is still incorrect. At the same time it throws their POC into a bit of a muddle as well, yes ?

 

Questions need to be asked methinks. On what information/records did they produce the first "creation" and the same question in respect of the 2nd creation. They were very insistent that the first document was correct, and they are now insistent that the 2nd copy is ?

 

On top of this, they havent submitted their AQ ?

 

I would agree with you that a letter stating that you wont pursue them for costs if they discontinue this claim and give you assurances that they wont pursue at a later date or sell the account on, would be in order. I think it needs to be crafted carefully. I will try and round up some assistance for you.

[citizenB]

Have sent pms to foolishgirl, emandcole and gh2008 for you. You may also want to try bazaar.. for as much input as possible.

[gh2008]

Haven't got time to read the thread through right now (will get to it later tonight hopefully) BUT I would certainly consider reporting them to teh OFT as what they have done is very wrong and the OFT have said they will come down hard on creditors doing that. (i.e. reconstructing agreements without having *exact* details of the agreement)

 

It would be fairly easy IMHO to deny that you ever signed an agreement that was similar to either of the ones so far produced.

 

If they are producing a new one dated 2004 there also needs to be proof that the original allowed them to change the terms etc

[emandcole]

Deleted due to replication

Edited September 28, 2010 by emandcole

[emandcole]

Deleted due to replication

Edited September 28, 2010 by emandcole

[emandcole]

How very odd. Not been following this thread but my understanding so far is that they've provided you with 2 differing agreements, each purporting to be a true copy of the original - which I presume they do not hold?

 

First off the Carey issue can be dispensed with as in that case the judge confirmed that the onus of proof lay with the Claimant and not the Defendant - this we know. The Claimant in this case however was the debtor, the bank the defendant so one very important difference. It also specifically addressed issues of non-compliance with section 78, well the claimant has provided you with a copy agreement and this does not negate the rest of the requirements - the Carey excuse is just not appropriate here.

 

To be honest the first thought I had was to use the provision of the 2 agreements against them. In essence if both have been provided as true copies they are both at the same time clear examples that this is not actually the case at all. I would therefore insist that given the obvious confusion the claimant is in that the matter is resolved, and can only be fairly resolved, by producing the original document for the court to inspect.

 

I'd also ensure they follow the Civil Evidence Act regarding documents in court if they are relying on copies, that is perfectly clear and will cause them further inconvenience.

 

It seems from their letter that they rely on the provision of a statement history and the fact you used the facility as further legal ground for their action, I suspect they are either ignorant or/and unable to provide the actual documentation the court will require. So far I'd say they have buckleys, they wouldn't be mucking about if their case was based on anything.

 

Before I waffle on I'll wait to hear back and perhaps others will have had time to provide comment

[IdaInFife]

here's AFW thread for info

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?269529-Creation-Financial-Services-and-Court-*WON*

[foolishgirl]

Hi monty

 

I'm dropping as requested by CB & have only just caught up with this fiasco. So to take a step back first:

 

1. Having cited one agreeement dated 1999 in their POC can they now change this for a purported agreement which the claim became effective on 'Notice of Transfer' in August 2004?

 

They cannot do this without submitting an app for an amended POC unless they get your agreement. You would (& should) object to this as this would be a substantial change in the claim, not a mere amendment i.e. force them to discontinue this claim (for which you could claim costs) & submit a fresh claim.

 

Furthermore your (one & only!) agreement was presumably signed & dated in 1999. Unless they can produce a copy of that one or show that you have signed another one with Creation in 2004, they are sunk. I really don't see how an amended POC on this point would help their case anyway. Who the heck have Drydens got working in their back office?

2. I think that the oringinal agreement date of March 2009 is the effective date. I do not recall ever receiving a 'Notice of Transfer', I cetainly did not sign a new ageement with Creation. They have provided what they allege to be a reconstituted 'Notice of Transfer'.

 

IMO this would not be a mere transfer of business, this is an assignment & you should insist on them providing a copy NOA & proof of posting (Law of Prop act states that it must be sent registered post)

 

3. The new address they have provided on the revised, alleged reconstituted agreement does not reflect my address at the date they now refer to as when the account was transferred to Creation from Ikano - any basic electoral register search will show this.

 

So it's not a true copy recon then is it??

 

BTW the way to tackle their reluctance to produce originals/hearsay evidence is with a Notice to Prove following receipt of their WS (if it gets that far) but that must be done quickly so post back if you need help if/when it gets to that stage. You can also get their witnesses to attend court if necessary

 

Now getting up to today:

 

Drydens have written with an offer of settlement. I want to respond saying, if their client drops their claim I will not persue them for costs and will not counter cliaim

 

The letter they have sent you is, in effect, a request for you to sign a consent order although the wording is extremely poor - IMO not even junior clerk standard!

 

IMHO your idea to respond by seeking an assurance as stated above is flawed as it cannot be supported by a court order & no matter what they may promise, it could all be fairy dust in another 6 months time & they (or another DCA gullible enough to buy the debt) will start all over again.

 

Their case is absolute rubbish, you should win hands down! I certainly wouldn't be entertaining any thoughts of consent orders.

 

However if you feel you need to respond to their corresp, I suggest that it is worded extremely firmly, in effect telling them to bog off or you'll go all the way, with the responsibility for any costs to their client being entirely in their court. i.e. discontinue now or I take you to the cleaners.

 

However, before you decide, I suggest you see if that AQ fee is paid on the 1st

[MONTY]

Thank you guys,

 

I am not going to negotiate with them and will fight this all the way. Sorry for the wobble in confidence, but I was knocked by a development in another case and it dented my moral somewhat! I have pick myself up and have come out fighting again thanks in large part to the inspiring comments in this and other threads.

 

I will give the court a ring today to see if they have received their AQ. If not their claim will striken out - can I then claim costs?

 

If they have submitted their AQ, I want to write a stongly worded letter to the Claimant pointing the error of their ways and confirming I intend to go all the away. Any hel[p with the wording will be gratefully received.

 

For information, if you look back in this thread you will see that I submitted a request for a refund for default charges. Creation conceded with a partial refund which I rejected. Drydens have now agreed tofull refund of all charges (in excess of £500.00) and have amended the alleged account accordingly. Is it another string to my bow that the sums being claimed are nw clearly inaccurate?

 

Monty

[24233513afw]

Ho Monty

 

Just a thought how much interest did you add to charges, SFU sent me calculator that charged 24% (seemingly this can be changed) which was roughly their contractual interest and this bumped up the charges that I claimed in my defence,quite a bit from the normal 8% court interest.

 

Just a thought!!!!

 

AFW

Edited October 1, 2010 by 24233513afw
oops spelling!!!!

[MONTY]

Thank you guys,

 

I am not going to negotiate with them and will fight this all the way. Sorry for the wobble in confidence, but I was knocked by a development in another case and it dented my moral somewhat! I have pick myself up and have come out fighting again thanks in large part to the inspiring comments in this and other threads.

 

I will give the court a ring today to see if they have received their AQ. If not their claim will striken out - can I then claim costs?

 

If they have submitted their AQ, I want to write a stongly worded letter to the Claimant pointing the error of their ways and confirming I intend to go all the away. Any hel[p with the wording will be gratefully received.

 

For information, if you look back in this thread you will see that I submitted a request for a refund for default charges. Creation conceded with a partial refund which I rejected. CREATION have now agreed tofull refund of all charges (in excess of £500.00) and have amended the alleged account accordingly. Is it another string to my bow that the sums being claimed are nw clearly inaccurate?

 

Monty

 

 

I have corrected the last paragraph of this quote.

 

I phoned the Court who informed that as the case has now been transferred to my local court under CPR 30 (I requested this in my AQ), 'the Claimants AQ must have been received...'.

 

I am not convinced. Iwill call my local court on Monday to try and clarify.

 

Monty

[MONTY]

The case has been transferred to my local Court and an Order of Stay issued

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=290910-ORDEROFSTAY.jpg

 

I am not going to agree any settlement. I am unsure from the attched where I can relay to the Court that I wish to defend all of the claim. Can anyone advise please?

 

Monty

[foolishgirl]

Looks to me as though they haven't submitted that AQ monty but that the Claimants have applied for a stay (despite the fact that it states 'all parties having agreed' on the order & you didn't!!) which in effect allows them breathing space in the hope that you will sign that CO.

 

Suggest you phone the court (the one it has been transferrred to) & ask if that is the case; if so, you will need to write to the court, state that the Claimant did not seek your permission for the stay & ask for it to be lifted. I suspect that it may be left as it is & nothing will move forward until the xx November.

 

In the meantime that CO letter will need a carefully worded response. Post up a draft if you are not sure...

Edited October 5, 2010 by foolishgirl

[MONTY]

Looks to me as though they haven't submitted that AQ monty but that the Claimants have applied for a stay (despite the fact that it states 'all parties having agreed' on the order & you didn't!!) which in effect allows them breathing space in the hope that you will sign that CO.

 

Suggest you phone the court (the one it has been transferrred to) & ask if that is the case; if so, you will need to write to the court, state that the Claimant did not seek your permission for the stay & ask for it to be lifted. I suspect that it may be left as it is & nothing will move forward until the xx November.

 

In the meantime that CO letter will need a carefully worded response. Post up a draft if you are not sure...

 

Thanks Foolishgirl,

 

I will call the Court today. I agree, the Court must have received the Claimanants AQ. Drydens sent me a copy some weeks ago, this is why I was suprised to receive from the Court a copy of a direction for the Claimant to submit an AQ by xx.10.2010 or have their claim struck out.

 

In the copy of the AQ I recieved the Claimant indicated they wanted time to attemept a settlement, wheras in my AQ I ticked the 'No' box.

 

I will point out to the Court that a stay was not mutually agreed.

 

I will post a draft letter asap. However, this will not be for a couple of days as I am working on an urgent WS required for another ofmy cases.

 

Monty

[MONTY]

Thanks Foolishgirl,

 

I will call the Court today. I agree, the Court must have received the Claimanants AQ. Drydens sent me a copy some weeks ago, this is why I was suprised to receive from the Court a copy of a direction for the Claimant to submit an AQ by xx.10.2010 or have their claim struck out.

 

In the copy of the AQ I recieved the Claimant indicated they wanted time to attemept a settlement, wheras in my AQ I ticked the 'No' box.

 

I will point out to the Court that a stay was not mutually agreed.

 

I will post a draft letter asap. However, this will not be for a couple of days as I am working on an urgent WS required for another ofmy cases.

 

Monty

 

I decided to go into the Court today instead of calling and I am glad I did. Reception were extremely helpful. It turns out that hte Claimants AQ was sent to Northampton instead of the Court it was suposed to. However, it has been received.

 

I have been advised to write to the Court pointing out that I have already submitted my AQ and that I have not agreed to a stay and wish this matter to progress. Furthermore, I should ask the Judge for direction in this matter.

 

Should I take this opportunity to inform the Court that the Claimant now admits their POC are no longer valid and ask for a strike out?

 

I will draft a letter to the Claimant advising of my letter to the Court (I will post here before it goes), stressing my psition that I want this matter before the Judge as soon as possible and that I will claiming the maximum costs I can in the event that the Court finds in my favour.

 

Monty

[gh2008]

This is getting a little messy.

 

You could apply for a Strike Out (Form is an N244 cost £75 with hearing) you would have to shown that the Claimant does not have a chance of winning with their current POC

 

Obviously the sooner the better for that .....

 

If you ask the Court for a Strike Out they will politely reply that you have to make an application.

 

I would not get into a slanging match with the other side - it doesn't go down well.