Jump to content


  • Tweets

  • Posts

    • I'm on happy pills (anti depressants) but they aren't cutting the mustard anymore and I do need to see my GP soon to see if he can help in anyway. With regards to gambling it's so complicated; through my life I have made money (as well as having had some jobs)  being a "professional gambler" (gambling where the odds are in your favour - think card counting for example, fruit machines years ago for a long time.... Other things.) But I've also been totally compulsive at the same time. It;'s so entrenched in my psyche that it's hard to imagine just giving it up totally. I also have drug issues that have plagued me and it's a shame because I am fairly intelligent and could have been successful in life in theory but mainly due to those two things (and not really having any drive, ambition, whatever... I could go on and on but this isn't a therapy forum :P) I've not managed to. I'm 36 by the way. Cheers
    • Oh I just remembered I have a long defaulted account with Halifax balance approx £3700 I believe (from around 2015) but they aren't chasing me for it or anything. It was actually over £5000 but they refunded me a load of unfair charges (their words)  This does however push me over the £20,000 limit for a DRO I think?  
    • Hi.   I think you've made a good start by setting out in writing what you need to deal with. People should be along later to advise on how to deal with your creditors.   For the mental side of things, have you talked to your GP about getting some help with what's getting you down? Or support with the gambling issues?   HB
    • Hi people.   So I've managed to get myself into a sorry state financially. I'm insanely depressed which I guess is common for many. I don't think all of it comes down to the financial stuff but it is really crushing me now.   Facts: A lot of debt has been due to living on credit and gambling. I don't have a job. I know I should get one but I just totally despondant at the moment (due to many reasons). I don't expect any sympathy but I thought I would share this.   It's tempting to bury my head in the sand and wait for the inevitable calls from various collections departments but I want to be as proactive as possible. I think I've cancelled all direct debits so I don't get bouncing charges from the banks...   So onto the debts:   Loans livelend; £2400 was 4k 13% interest Bamboo £3000 (only just made the first payment this month) supid interest Likelyloans approx £3500 stupid interest  One payday loan for £200 I just got to cover some bills (knowing that I'd unlikely be able to pay it) - this is the only thing I haven't cancelled with the bank as they just take it from your card   Credit cards: Aqua approx. 3900 Capital one approx. 1200 Amazon approx £500 Paypal Credit Approx £1100 Overdrafts Santander £1500 Barclays £1k limit (I don't actually pay anything for this)   So all in all approximately £18,000     I also have a negative Paypal balance of £5000 but I don't believe this classes as a debt and I don't think they can do anything about this having read up on it quite a lot.   I guess my question is what is my best course of action. Should I look to do a DRO? Should I go bankrupt? (eurgh. Full disclosure I did this 15 years ago when I was 21. You think I would have learnt!) Should I write to each creditor and offer them £1 a month? Should I talk to one of the debt charities?   It is all my fault that I'm in this state but I also know that it's not the end of the world because they are all non priority debts. I probably am slightly behind on the council tax but not significantly.   I started claiming universal credit a couple of weeks ago and had my first appointment last week but managed to miss the next one due to not being able to sleep and then oversleeping and so I guess they've probably kicked me off that already and I might have to claim again.    So yeah. I take responsibility for what's happened but I don't see any way out. I've been very depressed lately due to this and other things. There is no one to "bail me out" and I probably don't need or want that anyway. Any advice appreciated          
    • Hi All,   I left the UAE 2 years ago. Have my bank clearance letter from HSBC.  I have been receiving emails from a company based in Hemel Hampstead IDRWW about money owed to the bank of RAK in the UAE which I’ve ignored as thought it was spam. I have now received a letter through the post saying the same thing (no idea how they have got my new address) that they are acting on behalf of RAK bank. I’ve never had an account with them but know how dodgy things are over there so would be nervous going back!.... Do I just ignore it or reply? It must be identity theft?  I am also nervous about travelling as I travel a lot & wouldn’t want to be arrested!!  I obviously have no intent on paying a debt that is not mine plus have no assets here anyway... Can they actually take me to court for something that isn’t mine??  Any info gratefully received.  Have spoken to citizens advice & they couldn’t help. Thankyou   
  • Our picks

MONTY

MONTY v CREATION FINANCE

style="text-align:center;"> Please note that this topic has not had any new posts for the last 3092 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

I subbing MONTY, I am in Court beginning September with Creations, however different procedure I am in the Scottish Courts. (See my Thread Help Needed with Court Defence for STore Card PLEASE).

 

Godluck we are all rooting for you..

AFW

Share this post


Link to post
Share on other sites
I subbing MONTY, I am in Court beginning September with Creations, however different procedure I am in the Scottish Courts. (See my Thread Help Needed with Court Defence for STore Card PLEASE).

 

Godluck we are all rooting for you..

AFW

 

And good luck to you to. Take a look at Taz11 v Creation Fonace. Taz is waiting to hear from the Court as well.

 

M

Share this post


Link to post
Share on other sites

I received a letter this morning from Drydens in response to my CPR 31.14 & 15 requests.

 

They have confirmed they have provided me with all the documents they hold on the matter. They have provided further copies of the following documents:

 

A reconstituted agreement

A copy of the default notice

Monthly statements of account betwen 2005 & 2010

 

Drydens cite Carey v HSBC and believe the documents provided are sufficient to satisfy my request as per s78 of the CCA 1974.

 

They have confirmed that court costs and fees and interest have accrued on the account.

 

Drydens ask me to file a response to the claim form by 19th August 2010.

 

This letter confirms to me they do not have a copy of any alleged agreement and can not provide the same. Whilst a reconstituted agreement may satisfy s78 it does not satisfy CPR31.14 or 15. In reality the reconstituted alleged agreement they are relying on does not have the right address on it.

 

Furthermore, they do not appear to have a copy of the original DN, as all they can provide is a generic sample.

 

What is sneaky is they ask me to respond to the claim by the 19th August, when they know full well I had to file my defence by the 14th (good job I did).

 

Monty

Share this post


Link to post
Share on other sites
I received a letter this morning from Drydens in response to my CPR 31.14 & 15 requests.

 

They have confirmed they have provided me with all the documents they hold on the matter. They have provided further copies of the following documents:

 

A reconstituted agreement

A copy of the default notice

Monthly statements of account betwen 2005 & 2010

 

Drydens cite Carey v HSBC and believe the documents provided are sufficient to satisfy my request as per s78 of the CCA 1974.

 

They have confirmed that court costs and fees and interest have accrued on the account.

 

Drydens ask me to file a response to the claim form by 19th August 2010.

 

This letter confirms to me they do not have a copy of any alleged agreement and can not provide the same. Whilst a reconstituted agreement may satisfy s78 it does not satisfy CPR31.14 or 15. In reality the reconstituted alleged agreement they are relying on does not have the right address on it.

 

Furthermore, they do not appear to have a copy of the original DN, as all they can provide is a generic sample.

 

What is sneaky is they ask me to respond to the claim by the 19th August, when they know full well I had to file my defence by the 14th (good job I did).

 

Monty

 

I received this morning a letter from Northampton CC conforming receipt of my defence.

 

The Claimant has 28 days after receiving a copy of the defence to say if they wish to proceed.

 

Monty

Share this post


Link to post
Share on other sites

The Claimant's solicitor has written to me with a copy of a letter they have sent to Northampton CC.

 

In their letter they are requesting that, having received my defence, the case is allocated to my local CC. Only thing is they have requested the wrong CC.

 

I have written to Northampton CC, copy to claimant's solicitors, pointing out which is my local CC and requesting the case is allocated to the same.

 

Monty

Share this post


Link to post
Share on other sites

If the Claimant is adament their recon. is valid under Carey v HSBC and I can prove quite clearly that there recon. is blatently out of order (wrong address) it will show that the Claimant has falsified a document they are reliant upon in Court. Should i not bring this to the attention of the Court at hearing?

Share this post


Link to post
Share on other sites
If the Claimant is adament their recon. is valid under Carey v HSBC and I can prove quite clearly that there recon. is blatently out of order (wrong address) it will show that the Claimant has falsified a document they are reliant upon in Court. Should i not bring this to the attention of the Court at hearing?

 

You will see from this thread that I submitted a SAR to Creation ( I also, for good measure, asked for penalty charges back). Today I got a response.

 

Creation have provided me with statements back to February 2005 and a 'true copy of the alleged agreement, including terms and conditions, financial, and related particulars and statutoury notices, in accordance with the provisions of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 - SI 1983/1557' (They have also offered me £225 in response to my claim for a refund).

 

There are some major floors here.

 

Firstly, they are obviously not speaking to Drydens as their alleged agreements are markedly different. The one cited in the claim has an address on it, purported to be the address at the start of the alleged agreement (it isn't), and the one provided by Creation today does not.

 

Question - do I write to Drydens and point out the disparity between the two, stating I will draw the Courts attention to the same?

 

Secondly, the Creation submission states they only have informantion dating back to February 2005 and yet the PoC cites an alleged agreement entered into in 1999. Someone is clearly in error here.

 

Question - Do I point this ou to Drydens now in atempt to get them to withdraw or do I include this in my witness statement?

 

Monty

Share this post


Link to post
Share on other sites

Hi MONTY

 

Just out of curiosty when did you send for SAR to Creations, I posted mine and they received it 26 July 2010 not had a reply yet, they still do have time and I am thinking they might just draw it out.

Share this post


Link to post
Share on other sites
Question - Do I point this ou to Drydens now in atempt to get them to withdraw or do I include this in my witness statement?

 

Monty

 

I would save it for your witness statement. A bit early for negotiations IMHO.


 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

Share this post


Link to post
Share on other sites
Hi MONTY

 

Just out of curiosty when did you send for SAR to Creations, I posted mine and they received it 26 July 2010 not had a reply yet, they still do have time and I am thinking they might just draw it out.

 

I sent my SAR on the 1st July 2010. They acknowledged receiving it in their office on the 7th July 2010

 

Monty

Share this post


Link to post
Share on other sites
I would save it for your witness statement. A bit early for negotiations IMHO.

 

Thanks Caro,

 

Just received a letter from Drydens. Basically, they are confirming that Creation are not able to produce a copy of the original agreement OR Default Notice and they can not comply with the CPR 31 request. However, they have made a 'reasonable and propoetionat search...' and suggest this is sufficient.

 

They are holding to their view that a reconstituted copy is '...sufficient for the purposes of s78 'as held in the case of Carey v HSBC...' - I agree with them. However, what they have produced does not satidfy the strict requirements of Carey v HSBC.

 

Drydens have said that should I proceed with my application for specific disclosure, they put me on notice that they will oppose any such application (can they do this?) and will seek any and all of their clients legal costs incurred in dealing with my application. This seems out of order to me. A request under CPR 31 is ligitimate - can they intimidate me in this way? Should I complain to the relevant authority?

 

Any advice, especially in the construction of a reply would be gratefully received.

 

Monty

Share this post


Link to post
Share on other sites
Thanks Caro,

 

Just received a letter from Drydens. Basically, they are confirming that Creation are not able to produce a copy of the original agreement OR Default Notice and they can not comply with the CPR 31 request. However, they have made a 'reasonable and propoetionat search...' and suggest this is sufficient.

 

They are holding to their view that a reconstituted copy is '...sufficient for the purposes of s78 'as held in the case of Carey v HSBC...' - I agree with them. However, what they have produced does not satidfy the strict requirements of Carey v HSBC.

 

Drydens have said that should I proceed with my application for specific disclosure, they put me on notice that they will oppose any such application (can they do this?) and will seek any and all of their clients legal costs incurred in dealing with my application. This seems out of order to me. A request under CPR 31 is ligitimate - can they intimidate me in this way? Should I complain to the relevant authority?

 

Any advice, especially in the construction of a reply would be gratefully received.

 

Monty

 

Here are the links to the Drydens letter (2 pages)

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=270810-drydensoriginalsnotheldpg2.jpg

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=270810-drydensoriginalsnotheldpg1.jpg

 

Can anyone advise please?

 

Monty

Share this post


Link to post
Share on other sites

Hmmm, whether or not it complies with the standards set by the Carey judgement is neither here nor there IMHO. They are still required to prove that they have taken information from an accurate source for court. If they have destroyed all the original paperwork, how can they do that.

 

Will the be relying on Hearsay evidence and have they made application to the court for this to be allowed ?

 

If they have categorically confirmed that they do not have the original documents and their source for the reconstruction is compromised then I wonder if an application for specific disclosure could go against you. I simply dont know Monty .

 

I see they are asking to "speak" to you on a "without prejudice" basis. I am sure you will probably be advised that all communication might best be conducted in writing. But how much time do you have ? Would you be able to record any call if you did go that route ?


Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy -

HERE

2: Take back control of your finances -

Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors?

Read Here

4: Staying Calm About Debt

Read Here

5: Forum rules - These have been updated -

Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

 

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Share this post


Link to post
Share on other sites
Hmmm, whether or not it complies with the standards set by the Carey judgement is neither here nor there IMHO. They are still required to prove that they have taken information from an accurate source for court. If they have destroyed all the original paperwork, how can they do that.

 

Will the be relying on Hearsay evidence and have they made application to the court for this to be allowed ?

 

If they have categorically confirmed that they do not have the original documents and their source for the reconstruction is compromised then I wonder if an application for specific disclosure could go against you. I simply dont know Monty .

 

I see they are asking to "speak" to you on a "without prejudice" basis. I am sure you will probably be advised that all communication might best be conducted in writing. But how much time do you have ? Would you be able to record any call if you did go that route ?

 

How about the following letter I propose sending:

 

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

 

Your client has already advised that they cannot produce the original documents. Furthermore, your client has sent to me copies of documents under a Subject Access Request that are markedly different from that which your clients claim is based.

 

You will be aware that under CPR Practice Direction 16 Para. 7.3:

 

Where a claim is based upon a written agreement:

 

(1) 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.

 

I therefore expect the Claimant to produce the original documents being relied upon during any hearing so that it can be inspected.

 

If the Claimant is unable to produce the original documents and intends to introduce hearsay evidence and reproductions of something the Claimant states is a ‘true copy’ the Claimant should make the appropriate application in line with the Civil Evidence Act. I will require sight of such an application.

 

I intend, with the permission of the Court, to question the accuracy and history of any hearsay evidence, in order to ascertain the nature of supposed true copies. I would expect the Claimant to be able to fully document all record keeping processes and produce the evidence to support their claim that it is a true copy, in line with all responsible record-keeping requirements.

 

If the Claimant states that the original documents have been lost or deliberately destroyed and if the Court, all other matters aside, accepts the submission that a reconstituted is admissible I would expect the Claimant to produce the following as a reasonable keeper of data with reference to the Civil Evidence Act 1995.

 

 

 

Documents in Court – Civil Evidence Act 1995

 

(e) 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

 

If any of these are unavailable or incorrect I would request that the admission of reproduced documentation is denied.

 

The Claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and I would request permission of the Court to question the credibility of any witness relied upon by the Claimant.

 

As you have cited Carey v HSBC, I should not have to remind a Solicitor that I am the defendant in this matter, not the Claimant. As such, I put the Claimant to strict proof of all elements of their claim. Furthermore, Judge Waksman QC Summary of Findings is explicit as to the requirements of a reconstituted agreement. I will put the Claimant to strict proof that these requirements are met.

 

Furthermore, I will put the Claimant to strict proof that cancellation details were sent to me and that the same were sent to me within seven days of the signing of any alleged agreement as required under s64(1) of the Consumer Credit Act 1974.

 

I will put the Claimant to strict proof that any 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.

I am most concerned that in your clients Particulars of Claim you cite an agreement that you now admit does not exist. I feel obliged to bring this matter to the Courts attention.

 

 

 

 

 

 

Yours faithfully

Share this post


Link to post
Share on other sites

Hi MONTY

 

Can you tell me what address you sent your SAR to for Creations. I still haven't had acknowledgement or a reply for the SAR (was due 4/9/10 and have sent another Special Delivery letter reminding them I but I am wondering if I have the correct address.

Share this post


Link to post
Share on other sites
Hi MONTY

 

Can you tell me what address you sent your SAR to for Creations. I still haven't had acknowledgement or a reply for the SAR (was due 4/9/10 and have sent another Special Delivery letter reminding them I but I am wondering if I have the correct address.

 

Creation Financial Services Ltd

Chadwick House

Blenheim Court

SOLIHULL B91 2AA

Share this post


Link to post
Share on other sites
How about the following letter I propose sending:

 

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

 

Your client has already advised that they cannot produce the original documents. Furthermore, your client has sent to me copies of documents under a Subject Access Request that are markedly different from that which your clients claim is based.

 

You will be aware that under CPR Practice Direction 16 Para. 7.3:

 

Where a claim is based upon a written agreement:

 

(1) 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.

 

I therefore expect the Claimant to produce the original documents being relied upon during any hearing so that it can be inspected.

 

If the Claimant is unable to produce the original documents and intends to introduce hearsay evidence and reproductions of something the Claimant states is a ‘true copy’ the Claimant should make the appropriate application in line with the Civil Evidence Act. I will require sight of such an application.

 

I intend, with the permission of the Court, to question the accuracy and history of any hearsay evidence, in order to ascertain the nature of supposed true copies. I would expect the Claimant to be able to fully document all record keeping processes and produce the evidence to support their claim that it is a true copy, in line with all responsible record-keeping requirements.

 

If the Claimant states that the original documents have been lost or deliberately destroyed and if the Court, all other matters aside, accepts the submission that a reconstituted is admissible I would expect the Claimant to produce the following as a reasonable keeper of data with reference to the Civil Evidence Act 1995.

 

 

 

Documents in Court – Civil Evidence Act 1995

 

(e) 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

 

If any of these are unavailable or incorrect I would request that the admission of reproduced documentation is denied.

 

The Claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and I would request permission of the Court to question the credibility of any witness relied upon by the Claimant.

 

As you have cited Carey v HSBC, I should not have to remind a Solicitor that I am the defendant in this matter, not the Claimant. As such, I put the Claimant to strict proof of all elements of their claim. Furthermore, Judge Waksman QC Summary of Findings is explicit as to the requirements of a reconstituted agreement. I will put the Claimant to strict proof that these requirements are met.

 

Furthermore, I will put the Claimant to strict proof that cancellation details were sent to me and that the same were sent to me within seven days of the signing of any alleged agreement as required under s64(1) of the Consumer Credit Act 1974.

 

I will put the Claimant to strict proof that any 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.

I am most concerned that in your clients Particulars of Claim you cite an agreement that you now admit does not exist. I feel obliged to bring this matter to the Courts attention.

 

 

 

 

 

 

Yours faithfully

 

 

OK. I have not had any comments back re this letter. I have modified it slightly just adding:

 

"I can advise you at this stage that should your clients claim fail they will be liable for wasted costs and appropriate counterclaims. In order to prevent this you would be minded to discontinue your claim".

 

It will go out recorded delivery today.

 

Monty

Share this post


Link to post
Share on other sites

Hi MONTY

 

Cheers for reply. It is the same address I used for my SAR, but they never acknowledged receiving it. However Royal Mail site states they got both special delivery letters. personally I think they are playing silly mind games.

 

Great letter you have complied would it be okay to use bits and pieces from it for my case (with all credits to you).

 

I am at the stage no SAR received back in court 22nd Sept not quite sure what way to go. As I said playing mind games.

Cheers

AFW

Share this post


Link to post
Share on other sites

No problem. Use what you like. Just bare in mind I am no expert - just learning as I go. I am happy to assis where I can but you take my advice at your own risk I am afraind.

 

Good Luck. I will be watching your thread with interest.

 

Monty

Share this post


Link to post
Share on other sites
The Claimant's solicitor has written to me with a copy of a letter they have sent to Northampton CC.

 

In their letter they are requesting that, having received my defence, the case is allocated to my local CC. Only thing is they have requested the wrong CC.

 

I have written to Northampton CC, copy to claimant's solicitors, pointing out which is my local CC and requesting the case is allocated to the same.

 

Monty

 

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

 

Monty

Share this post


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

 

Monty

 

I intend submiting the following as Section 8 of the AQ. Any comments before Friday morning would be much appreciated:

 

Section G - other information

 

if the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order. The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

A. On XX XXXXXXX 2009, in response to a threat of legal action, The Defendant forwarded a formal Subject Access Request for information related to the alleged account. The Claimant provided generic terms and conditions for a Credit Card Agreement, unsigned and undated.

B. On XX XXXXXXXX 2009 The Defendant forwarded a request for information pursuant to s.78 of the Consumer Credit Act 1974 (The Act). The Defendant requested provision of a true copy of any credit agreement, together with any other documentation The Act requires. The claimant was informed that if they could not provide required documentation they should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee paid in respect of the provision of the said documents. The Claimant failed to comply within the statutory time limit, or at all and therefore s78 (6) of The Act now apply.

C. On XX XXXX 2010 having not received required information the Defendant is entitled to under s.78 of The Act, within the prescribed timescale in accordance with Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983, The Defendant issued a formal notice that the account is in dispute.

D. On the XX XXXXX 2010, the Claimant provide what is alleged to be a reconstituted agreement and not that as defined in section 61(1) of Consumer Credit Act 1974. Citing Carey v HSBC, the claimant maintains that the requirements of s78 have been met.

E. On the XXXX XXXX 2010 the Claimant submitted a request under Civil Procedure Rules (CPR) Practice Direction – Pre-Action Conduct Annex A paras. 4.2(1) and 4.2(7) for a true copy of the executed credit agreement, incorporating prescribed notices, terms and conditions applicable at the time of the agreement was executed and any further or subsequent notices, terms and conditions being relied upon.

F. In response to the Claimants Particulars of Claim (POC) (submitted 14th July 2010), on the XXXX XXXXXX 2010 the Defendant submitted a request under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the document mentioned in, but not included with, the Particulars of Claim. The Claimant responded with what is purported to be reconstituted copy of the alleged agreement and a generic example of a Default Notice.

G. On XXXX XXXXXXX 2010 the Claimant sent a CPR 31.15 request for copies of the original documents being relied upon in the Claimants POC.

H. On the XXXX XXXXXX 2010 the Claimant advised they are not able to produce a copy of the original agreement that was allegedly executed and that it is not their standard practice to retain a copy of the Default Notice allegedly issued on the 11th September 2009.

Without production of the requested documents, the defendant is at a disadvantage and unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation it will inhibit the courts ability to deal with the case.

If the Claimant is unable to produce the original documents and intends to introduce hearsay evidence and reproductions of something the Claimant states is a ‘true copy’ the Claimant should make the appropriate application in line with the Civil Evidence Act. A copy of any such an application should be made available to the Defendant.

I intend, with the permission of the Court, to question the accuracy and history of any hearsay evidence, in order to ascertain the nature of supposed true copies. I would expect the Claimant to be able to fully document all record keeping processes and produce the evidence to support their claim that it is a true copy, in line with all responsible record-keeping requirements.

If the Claimant states that the original documents have been lost or deliberately destroyed and if the Court, all other matters aside, accepts the submission that a reconstituted is admissible I would expect the Claimant to produce the following as a reasonable keeper of data with reference to the Civil Evidence Act 1995.

 

Documents in Court – Civil Evidence Act 1995

 

(e) 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

 

If any of these are unavailable or incorrect I would request that the admission of reproduced documentation is denied.

The Claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and I would request permission of the Court to question the credibility of any witness relied upon by the Claimant.

Furthermore, I will put the Claimant to strict proof that cancellation details were sent to the Defendant and that the same were sent to me within seven days of the signing of any alleged agreement as required under s64(1) of the Consumer Credit Act 1974.

The Defendant will put the Claimant to strict proof that any 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.

I respectfully bring to the Courts attention that the Claimant is reliant upon documents as cited in the POC which they now admit they do not hold and do not exist.

It is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

 

 

 

Draft Order for Directions

 

1. The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) deliver to the Defendant a verified true copy of each of the following documents mentioned in the Particulars of Claim

i) The properly executed agreement

ii) The Default Notice

iii) Cancellation details and proof that the same was sent to the Claimant within seven days of the signing of any alleged agreement, being 17.03.1999 as detailed in the Claimants POC, as required under s64(1) of the Consumer Credit Act 1974.

2. If copies of any of the above documents are to be relied on in the Court rather than the originals, a 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:

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

(vi) 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)

(vii) 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

(viii) 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

shall be produced.

3. In the event that the Claimant shall fail to comply with paragraph 1 and/or 2 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this Court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

4. In the event of compliance with paragraph 1 and/or 2 of this order this case shall be allocated to the small claims track and

5. The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

Share this post


Link to post
Share on other sites

I ammended para E as it had a typo it now reads:

 

 

"E. On the XXXX XXXX 2010 the DEFENDANT submitted a request under Civil Procedure Rules (CPR) Practice Direction – Pre-Action Conduct Annex A paras. 4.2(1) and 4.2(7) for a true copy of the executed credit agreement, incorporating prescribed notices, terms and conditions applicable at the time of the agreement was executed and any further or subsequent notices, terms and conditions being relied upon."

 

Aq being dispatched today by recorded, next dat, delivery

 

Monty

Share this post


Link to post
Share on other sites

In response to my letter (Page 2 of this thread Post 128), Drydens have written to say how 'disappointed at your refussal to enter "without prejudice" negotiations...' they are. This is not strictly true as all I have said is that I am not prepared to telephone them as I feel a record of all communication is appropriate as they have intitated legal action.

 

Drydens have invited me to 'reconsider (my) stance...' and have further stated that '...due to the passage of time the original agreement is not available...our client however (will) be producing evidence to show that an agreement exists...'

 

Me thinks they might be changing tack away from their Carey v HSBC position. I will have to wait and see. In the meantime, I am tempted to respond and clarrify that I have not 'refused' to enter negotiations, I merely do not thing 'without prejudice' telephone conversations are appropriate.

 

Monty

Share this post


Link to post
Share on other sites
In response to my letter (Page 2 of this thread Post 128), Drydens have written to say how 'disappointed at your refussal to enter "without prejudice" negotiations...' they are. This is not strictly true as all I have said is that I am not prepared to telephone them as I feel a record of all communication is appropriate as they have intitated legal action.

 

Drydens have invited me to 'reconsider (my) stance...' and have further stated that '...due to the passage of time the original agreement is not available...our client however (will) be producing evidence to show that an agreement exists...'

 

Me thinks they might be changing tack away from their Carey v HSBC position. I will have to wait and see. In the meantime, I am tempted to respond and clarrify that I have not 'refused' to enter negotiations, I merely do not thing 'without prejudice' telephone conversations are appropriate.

 

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,

Share this post


Link to post
Share on other sites

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.


Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy -

HERE

2: Take back control of your finances -

Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors?

Read Here

4: Staying Calm About Debt

Read Here

5: Forum rules - These have been updated -

Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

 

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...