MONTY v CREATION FINANCE

[gh2008]

....... and they also charge a £25 'administration fee' (code for a freebie to them) for the customer settling the transaction on time and in full! It sems to me that they operate in a very irregular and manipulative way to squeeze as much as possible out of the hapless and, in some cases, less than knowledgeable customer.]

 

Don't want to hijack this thread - but start another thread - pm me the details as I would be interested to have a look at the agreement.

Was the offer 0% APR as that £25 should be included and therefore is NOT 0% APR (and therefore unfair - legal unfair as opposed to thought unfair)

[MONTY]

don't put in the deny the debt bit as it just annoys people - just leave it out completely - actually leave out the 2nd para completely

 

put in a time limit, but not the withdrawing bit

 

otherwise looks ok

 

Good luck

 

Thank you GH2008,

 

Amendments made as suggested. Letter going in the post today

 

Monty

[MONTY]

Thank you GH2008,

 

Amendments made as suggested. Letter going in the post today

 

Monty

 

responce received from Drydens:

 

Our client accepts that it no longer holds the original executed agreement, at no stage have we confirmed our client cannot produce a true copy of the agreement, terms and conditions or a reconstituted default notice. Indeed, you have now been served with all such documents.

 

The remainder of your letter is noted and we are seeking our client's instructions upon the offer contained therein...

 

Well , they have produced three different versions of 'copy of the agreement...' and have yet to amend their POC to reflect the one they now maintain is the 'true copy'

 

Question: Do they have to amend their POC formally or can they just pitch up and say that the original details of the same are now changed?

 

More as it happens

 

Monty

[liquidauctions]

i will be following this one

[emandcole]

Well , they have produced three different versions of 'copy of the agreement...' and have yet to amend their POC to reflect the one they now maintain is the 'true copy'

 

Question: Do they have to amend their POC formally or can they just pitch up and say that the original details of the same are now changed?

 

If they've produced three different 'true copies' that makes it quite easy for you to state that none of them can in fact be a true copy at all! If they choose one that 'is' the true copy ask why the other two have been provided as 'real' when they are clearly different. Once they've come up with some smart answer remind the court that if the claimant can produce two different 'true copies' to the one they claim is the actual 'true copy' what guarantee does the court have that this 'real' one also isn't a made up copy. Use the other two against them to add doubt to their claims.

 

Also make sure you see a document trail linking this supposed true copy to the original that appears to be missing. Given the absurdity of the claimant producing three different 'true copies' I would insist such a data trail is produced in order to eliminate doubt, however we all know such a data trail will not be produced by the claimant as they rarely seem to bother themselves with such things.

 

If the claimant cannot evidence how this supposed true copy is linked to the original, especially when they appear to have two spare but very different true copies this should be enough to demonstrate to the court that what they've submitted as being accurate documentary evidence is anything but.

 

As for the PofC changes it may depend on the judge, some will let the claimant get away with all manner of irregularities (especially if you let them) but I believe in a perfect world that a change to the PofC should be done in the correct manner and they should certainly let you know about it in good time otherwise you are potentially disadvantaged by their chopping and changing.

 

If anything does throw you off at any point make sure you complain to the court about it so they don't introduce any last minute surprises to catch you off guard. If this means requesting a delay to allow you to respond fully to their changes (which must be seen as materially significant, not just tiny changes that make little difference) then ask for this, if they have clearly been sly about it in order to trip you up then a request for costs would not go amiss either.

[MONTY]

If they've produced three different 'true copies' that makes it quite easy for you to state that none of them can in fact be a true copy at all! If they choose one that 'is' the true copy ask why the other two have been provided as 'real' when they are clearly different. Once they've come up with some smart answer remind the court that if the claimant can produce two different 'true copies' to the one they claim is the actual 'true copy' what guarantee does the court have that this 'real' one also isn't a made up copy. Use the other two against them to add doubt to their claims.

 

Also make sure you see a document trail linking this supposed true copy to the original that appears to be missing. Given the absurdity of the claimant producing three different 'true copies' I would insist such a data trail is produced in order to eliminate doubt, however we all know such a data trail will not be produced by the claimant as they rarely seem to bother themselves with such things.

 

If the claimant cannot evidence how this supposed true copy is linked to the original, especially when they appear to have two spare but very different true copies this should be enough to demonstrate to the court that what they've submitted as being accurate documentary evidence is anything but.

 

As for the PofC changes it may depend on the judge, some will let the claimant get away with all manner of irregularities (especially if you let them) but I believe in a perfect world that a change to the PofC should be done in the correct manner and they should certainly let you know about it in good time otherwise you are potentially disadvantaged by their chopping and changing.

 

If anything does throw you off at any point make sure you complain to the court about it so they don't introduce any last minute surprises to catch you off guard. If this means requesting a delay to allow you to respond fully to their changes (which must be seen as materially significant, not just tiny changes that make little difference) then ask for this, if they have clearly been sly about it in order to trip you up then a request for costs would not go amiss either.

 

 

 

Please see the latest from Drydens.

 

I may be a novice but this talk of applying to have my defence struck out seems a bit desperate. How should I respond to Drydens?

 

I am now working on my Witness Statement and will post my forst draft here in the next few days. Any advice will be most welcome.

 

Monty

Edited February 9, 2011 by cerberusalert

[foolishgirl]

So, not content with producing three different true copies they are now seeking to convince the court of their ineptitude by producing 2 x letters, one offering you 14 days to settle & one stating they have applied for a SO. Which are you supposed to believe?!

 

I don't think either deserve a response & I know where I would be tempted to file both.

 

IF (it's a big if) they have applied for a SO & SJ, you will be informed by the court & given time to show why you have a valid defence & the case should proceed.

 

Seems to me that these are more threatening noises & verging on harassment for which you should be entitled to compensation.

[MONTY]

So, not content with producing three different true copies they are now seeking to convince the court of their ineptitude by producing 2 x letters, one offering you 14 days to settle & one stating they have applied for a SO. Which are you supposed to believe?!

 

I don't think either deserve a response & I know where I would be tempted to file both.

 

IF (it's a big if) they have applied for a SO & SJ, you will be informed by the court & given time to show why you have a valid defence & the case should proceed.

 

Seems to me that these are more threatening noises & verging on harassment for which you should be entitled to compensation.

 

How about if I write to the SRA citing these two letters of yet another example of how Dryden's are not compliant with the Solicitors Code of Practise - would this not support my current complaint?

 

Monty

[foolishgirl]

It may do but I think you may be wasting a stamp. IMO the SRA are not worth more than one letter; in my experience you'll get a generic letter back stating how sorry they are you feel you have had to report the matter, how they take their duty as a regulatory body very seriously but that they do not feel it appropriate to take further action. With a bit of luck the report will be registered against the sol's name but I suspect the next person that comes along with a similar complaint will prob. be treated just the same.

 

If you get any more, I will fall off my chair.

 

As with other bodies that self regulate, you can't expect monkeys to guard the bananas effectively.

 

I know not all CAGers may agree with my views on the SRA but I can only give you my opinion based on my experience.

[emandcole]

I'd back that up actually, SRA are pretty feeble

[gh2008]

When they don't deal with clowns like Carter and his antics I think that speaks volumes ......

 

No harm though - it does *really* upset the other side if you do report them with a justifiable complaint ..

[MONTY]

When they don't deal with clowns like Carter and his antics I think that speaks volumes ......

 

No harm though - it does *really* upset the other side if you do report them with a justifiable complaint ..

 

I have taken the decision to write to the SRA and copy Dryden's in to the same. If nothing else I would have formally added to the audit trail of inappropriate behaviours by these people.

 

Dear Sir,

 

Reference: xxxxxxxxxxxxx

 

I write further to my complaint dated xxx November 2010 regarding Dryden’s Solicitors.

 

Please find enclosed copies of recent correspondence from Drydens dated xxx xxxxx 2011.

The contradictory nature of these two letters is clear example of attempts to intimidate and mislead me.

Dryden’s conduct is in breach of the Solicitor’s Code of Conduct. Attempting to confuse and bully me is totally unacceptable.

 

I urge you to expedite your investigations and take immediate action and insist Dryden’s act more appropriately.

 

Yours faithfully,

[foolishgirl]

10/10 for trying Monty but suspect I know where they may be filed..

[MONTY]

I am thinking off sending the following:

 

Dear Sir,

 

Reference: Creation Financial Services-v-xxxxxxxxxxxxxx Claim No. xxxxxxxxxxx

 

CPR 31.14 Request

 

On the xxxxxxxxx xxxxx 2010 I received the Claim Form in this case issued by the Claimant out of the Northampton County Court on xxxx xxxx 2010.

 

The Claimant has failed to adequately respond to my previous CPR 31 requests of the xxxx 2010, xxxx xxxx 2010 & xxxx xxxx 2010 for the disclosure and the production of a verified and legible copy of each of the following document mentioned in your Particulars of Claim (POC).

 

1. The Agreement.

 

You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para7.3, 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. This document should clearly show interest rate which the Claimant claims in his POC at a rate of 36.90% per annum.

 

However, I acknowledge that you have now, finally informed me that an alleged agreement you have previously averred to in your Particulars of Claim does not exist.

 

As you are aware, a credit agreement issued prior to 2006 that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act and therefore is a complete defence to any court claim that is issued.

 

2. The Default Notice

 

On the xxxx xxxxx 2010 the Claimant advised that it is not his standard practice to retain a copy of the Default Notice allegedly issued on the xxxx xxxxxxx 2009.You have failed to provide me with a properly executed Default Notice, preferring instead to supply a blank copy of a generic document.

 

 

Notwithstanding the above, non-compliance with my multiple CPR request, I am writing to you again under CPR 31.14 for all of the following documents. I remind you that District Judge xxxxxxx has ordered that the original documents must be produced at hearing. You will also be aware of my right under CPR to inspect all documents you might refer prior to at hearing.

 

Required Documents:

 

A. A document that shows that the alleged Default Notice had a specified date by which to remedy and was in the prescribed format as laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 2004 (SI 2004/3237.

 

B. A document that proves any alleged default notice was sent by the Claimant and received by the Defendant.

 

C. A document giving express notice in writing, compliant with Law of Property Act 1925 Section 136(1) and 196(4), that a Notice of Assignment was duly made on assignment from Ikano Finance to Creation.

 

If copies of any of the above documents are to be relied on in the Court rather than the originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2 (1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required s8 (1) (b) of the Act, including but not limited to:

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of the destruction of the original document(s)

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with appropriate quality standards

 

The Claimant should ensure compliance with his CPR 31 duties and ensure that the documents I have requested are copied to and received by me within seven days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for the Claimant to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, the Claimant will have a right to possession of that document if it has been mentioned in his case. The Claimant must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in the Claimant’s possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and the Claimant must provide a copy of each version of it to me.

 

The Claimant’s obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for the Claimant’s reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If the Claimant requires more time in which to comply with this request Claimant must tell me in writing. The Claimant must tell me before the time for compliance with this request has expired. In telling me the Claimant requires more time the Claimant must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when the Claimant will comply with this request. In addition the Claimant‘s statement must be accompanied with a statement that he agrees to an extension of the time for me to file my defence. This extension of time must be not less than 14 days from the date when the Claimant states he will have complied with my request and the Claimant must state the new date for filing my defence.

 

If the Claimant is unable to comply with this request and believe that he will never be able to comply with this request I must be informed in writing.

 

Please note that if the Claimant should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

 

Edited February 4, 2011 by MONTY
removal of name

[foolishgirl]

I'm sorry Monty to be brutally honest but if I got that letter as a Claimant I would bin it in the proverbial as it's just too wishy-washy to be taken seriously. You have to show conviction & firmness to get the results you want.

 

The correct process is to send a CPR31.14 before the case is allocated to track & request the info you want that is referred to in the POC, follow it up with a CPR31.15 after the time limit you gave them in the CPR31.14 request stating where & when you would like to inspect copies or offer to pay them cost of copying & mailing to you. If that fails apply immediately to the court for a disclosure order.

 

If it's already allocated to SC before your first request, you have to use CPR27.4 for directions.

 

Not sure where you are up to with this one now Monty but it sounds from the above that you have requested the info under CPR31.14 several times & IMO it now needs an app to the court.

 

Anything less just serves to demonstrate to them a partial knowledge of the judicial processess & indicates that you can be walked all over & believe me, they will get their big boots out & grind you into the ground if you give them that opportunity.

[caro]

I agree. It's not down to you to remind them what's happened or tell them their legal obligations.

 

They've had the opportunity to comply, they've failed to do so properly, so time to take action.

 

Keep things concise and to the point so your message doesn't get lost, and follow through with what you've started or Creation won't take you seriously.

[MONTY]

I'm sorry Monty to be brutally honest but if I got that letter as a Claimant I would bin it in the proverbial as it's just too wishy-washy to be taken seriously. You have to show conviction & firmness to get the results you want.

 

The correct process is to send a CPR31.14 before the case is allocated to track & request the info you want that is referred to in the POC, follow it up with a CPR31.15 after the time limit you gave them in the CPR31.14 request stating where & when you would like to inspect copies or offer to pay them cost of copying & mailing to you. If that fails apply immediately to the court for a disclosure order.

 

If it's already allocated to SC before your first request, you have to use CPR27.4 for directions.

 

Not sure where you are up to with this one now Monty but it sounds from the above that you have requested the info under CPR31.14 several times & IMO it now needs an app to the court.

 

Anything less just serves to demonstrate to them a partial knowledge of the judicial processess & indicates that you can be walked all over & believe me, they will get their big boots out & grind you into the ground if you give them that opportunity.

 

No need to apologise. Good firm direction is what I need and I am grateful for all thej advice and support I am receiving.

 

Monty

[MONTY]

STOP PRESS

 

I have just opened my mail to find documents from the Court and Drydens 'Notice of Claimant's Application to strike out defence'. This application will take place 24.03.2011, so I guess the hearing scheduled for 01.03.2011 is not going ahead! No need for my suggested letter either.

 

I will sanitise the WS, scan and post here just as soon as I can

 

Monty

[foolishgirl]

You need to check with the court asap Monty. It is not usual for a SO hearing to be scheduled after the trial hearing & I would have expected that at the very least, the 2 would have been dealt with together.

 

It would seem to say volumes about Drydens confidence (or lack thereof) to win this if they apply for a SO in the knowledge that a trial hearing is in the court diary within a very short space of time i.e. why waste money on an app if you feel you have a strong enough case that would win the day anyway? I suspect they are either (a) hoping you won't respond to the app & they will win by default or (b) trying to get you to disclose the tactics you will use at a full hearing. Be wary...

Edited February 5, 2011 by foolishgirl

[MONTY]

You need to check with the court asap Monty. It is not usual for a SO hearing to be scheduled after the trial hearing & I would have expected that at the very least, the 2 would have been dealt with together.

 

It would seem to say volumes about Drydens confidence (or lack thereof) to win this if they apply for a SO in the knowledge that a trial hearing is in the court diary within a very short space of time i.e. why waste money on an app if you feel you have a strong enough case that would win the day anyway? I suspect they are either (a) hoping you won't respond to the app & they will win by default or (b) trying to get you to disclose the tactics you will use at a full hearing. Be wary...

 

I have been pondering this very point. Why postpone if they are confident of their position? They would have received my WS 14 days prior to hearing iaw the DJ's order any way and as such would have had full detail of the points I will argue at hearing. Could it be that the DJ has ordered originals documents to be produced and by their own admission they have none? No agreement, no DN, no NoA or evidence that the same was delivered.

 

Their WS makes interesting reading. I have redacted the same ready for posting but I will have to break it down into sections as it is too large as one .jpeg. I will PM Foolishgirl with it first as even with redactions it may not be appropriate to post.

 

Have a look at the letter linked in post post 131 they are dated a week after the SO app. was submitted - interesting tactic.

 

The crux of their claim is that they can prove I have had the benefits of the card (they call it a 'creditcard' in their WS and a 'storecard' in other documents), therefore the production of a true copy of an agreement, DN and NoA is not required. This psition is suppoted by recent case precedent.

 

How should I respond to the WS app? Should I acknowledge?

 

Monty

Edited February 5, 2011 by MONTY
left something out

[MONTY]

 

Have a look at the letter linked in post post 131 they are dated a week after the SO app. was submitted - interesting tactic.

 

 

I have just doubled checked the dates - WS is dated 6 days prior to date of letters at post 131 however the SO App. was submitted on the same dates as the 131 letters. The SO hearing was ordered on 01.02.2011

 

Monty

[MONTY]

I have just doubled checked the dates - WS is dated 6 days prior to date of letters at post 131 however the SO App. was submitted on the same dates as the 131 letters. The SO hearing was ordered on 01.02.2011

 

Monty

 

REMOVED

 

This is the SO application

 

Monty

Edited February 5, 2011 by MONTY
SUSPECT BEING VIEWED BY DCA

[MONTY]

Their WS is full of holes and attempts to distract. They appear to be acting out of desperation. This needs a hearing (or two!). For security I will not be posting my WS until after the SO hearing but will keep Caggers informed via this thread as we proceed.

 

I can not wait for the hearing!!!

 

Monty

[MONTY]

I spoke to the Court today. They have confirmed Dryden's request to hold both heaings on the 01.03.2011. Strke Out App. forst and then the actual hearing

[MONTY]

Just to update - the hearing was adjourned. While I await another date to be scheduled there have be some significant events with other Caggers. The following link is particularly relevant to my case and I will be using it on the day:

 

http://www.bailii.org/ew/cases/EWHC/...e/2011/B3.html

 

Of note, is the DJ's scathing comments re DCA tactics

 

Good evening Tom