Aplins POC's so vague HELP!

[Louisdebroglie]

Hi CAGGERs,

I've been milling around here for a number of years and this is post number 2 only.

I have a county court claim against me for a 2002 Sainsburys credit card that I have not paid anything against for 2 years or so.

I have dealt with at least 8 DCA's who have passed this around but finally now, Hillesden securities have instructed their solicitors, Aplins, to go for a "charging order" through Northampton CC.

I have received the claim form and acknowledged receipt pending posting my defence.

The Particulars of the claim are "The claimants claim is in respect of banking facilities provided at the request of the defendant and under which the amount shown below is now due and owing from the defendant"....

 

I have a copy of the original application form sent to me by Hillesdens which they claim does not need to have the prescribed terms on the "face" of the agreement as it is "not a fixed term agreement". (Signed 20/10/2002). This appears to me to be an acknowledgement that the terms are in fact not present.

 

Hillesdens have stated that it is not an application form and is in fact a copy of the original agreement.

 

My question is what do I put as my defence as they do not even claim that any agreement has been breached in their particulars?

 

Would I be tripping myself up if I refer to any agreement that is not referred to in the POC's.

 

I have until August 16th 2010 to file the defence.

 

Many Thanks

 

Louis

[Louisdebroglie]

Hi CAGGERs, (sorry, I started this thread in the successes area by mistake)

 

I've been milling around here for a number of years and this is post number 2 only.

I have a county court claim against me for a 2002 Sainsburys credit card that I have not paid anything against for 2 years or so.

I have dealt with at least 8 DCA's who have passed this around but finally now, Hillesden securities have instructed their solicitors, Aplins, to go for a "charging order" through Northampton CC.

I have received the claim form and acknowledged receipt pending posting my defence.

The Particulars of the claim are "The claimants claim is in respect of banking facilities provided at the request of the defendant and under which the amount shown below is now due and owing from the defendant"....

 

I have a copy of the original application form sent to me by Hillesdens which they claim does not need to have the prescribed terms on the "face" of the agreement as it is "not a fixed term agreement". (Signed 20/10/2002). This appears to me to be an acknowledgement that the terms are in fact not present.

 

Hillesdens have stated that it is not an application form and is in fact a copy of the original agreement.

 

My question is what do I put as my defence as they do not even claim that any agreement has been breached in their particulars?

 

Would I be tripping myself up if I refer to any agreement that is not referred to in the POC's.

 

I have until August 16th 2010 to file the defence.

 

Many Thanks

 

Loui

[littlebert8]

Search for the forum for 'Aplins' and you will find other threads with identical or very similar, but equally as vague, POC.

 

In my case, I have sent them a Part 18 request in order to clarify their POC. However, other suggestions are to enter an "embarrassed" defence or apply for a strike out.

 

Personally, I would be wary of being to quick to enter an embarrassed defence. You could probably outright deny the claim as I doubt that you have ever requested or indeed received 'banking facilities' from Hillesden.

 

Here is a link to my case http://www.consumeractiongroup.co.uk/forum/legal-issues/266553-bos-mbna-hilisden-dlc-3.html

 

Also, have a look here http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/213405-hillesden-securities-ltd-dlc-4.html#post3069678

[martin g]

Hi Louis,

You seem to have posted this in DCA successes. I have asked for it to be moved to legal.

If it isn't I suggest you start a new thread in legal yourself by copying the above and pasting it in

 

Martin g

[cerberusalert]

Moved to Legal forum

[Docman]

louis

 

First, you need to acknowledge service of the claim form through Northampton if you have't already done so.

 

Second, as the solicitors have sent you an 'agreement', can you hide the personal identifyers and post up an image of the document?

[Louisdebroglie]

OK,

 

I have acknowledged using MCOL stating that I intend to defend all. (The date of service was 14th July + 5 days = 19th July + 28 days = last day for submission of defence 16th August.)

 

I will post the "agreement" on the site tonight, but I am reasonably convinced, having been examining it for some time, that it is simply an application form without the required terms. (As Hillesdens have already told me, the terms "do not need to be on -the face- of the document".)

 

I have noted that there is another thread almost identical to mine where the tact seems to be to present a holding defence based on the POC's disadvantaging me from making any kind of defence being as vague as they are.

 

Thanks to all so far

 

Louis

[Louisdebroglie]

Littelbert...thanks.

 

I seem to be running two threads at the same time if the site team could splice them together that would be great.

 

I did notice your thread and subscribed.

 

I think the part 18 is the way to go as these have to be the vaguest POCs ever!

 

I'm posting my agreement up tonight...

 

Cheers

 

Louis

[MARTIN3030]

2 threads merged.

[Louisdebroglie]

OK,

Heres the CCA that Hillesdens sent me.

Clearly an application form without the prescribed terms.

The copy is really this bad.

Hillesdens say the terms don't need to be on the document. (Face of the document anyway)

 

Observations?

 

Louis

[slick132]

Hi Louis,

 

Hillesdens say the terms don't need to be on the document. (Face of the document anyway)

Well, they WOULD say that wouldn't they !

 

What matters here is not whether it's an Application or a Credit Agreement, but the fact that it does not have the Prescribed Terms as you have already noted.

 

Is this the only document they've sent you or is there another page containing the Prescribed Terms, which they say was part of the same document.

 

The document is barely legible in places and could conceivably be construed as illegible for the purposes of CCA 1974.

 

However, such matters may be decided by a judge on the day and that can be down to pure luck. Decisions recently seem to have favoured the banks and a judge may be swayed by your signature on the Application.

 

You should use the "embarrassed" defence which I assume you will have seen on other threads.

 

Have you reclaimed all penalty charges that have been added to the a/c.

 

[Louisdebroglie]

Thanks Slick..and for the PM too.

 

That's a really weird thing with the PDF and floating boxes. I'll get a different type up.

 

I received the microfiche copy of the "agreement" and 8 newly written out T&C's, although there is no claim that they are part of the same document, but rather that they must have been sent to me at the time.

 

It's actually 3+ years since Sainsburys sent me the default notice (28th November 2006) at which time the balance was £6K.

 

Hillesdens are claiming £6.5K so there must be charges.

I haven't been pursuing charges as I have been focused on playing communication ping-pong with all the DCA's that have handled this to date..there have been seven of them:-

(DLC-Robinson Way-Rockwell debt collection Agency-Fenton Cooper-Nelson Guest and Partners-Wescot credit services-Oliver and Scott limited)..Surely this must be a record!

I wonder if the fact that six DCA's have passed it on might tell us something about the perceived enforceability of this agreement.

 

Louis

Edited August 6, 2010 by slick132
changed to approx amounts for anonymity

[Louisdebroglie]

And while I think about it....I have a copy of the DN sent to me on 28th November 2006, which allowing for the service date of 2 days following posting, only allows 12 days for remedy.

 

I have noticed on a few threads, that a deficient DN appears to be fatal in a claim. Are there any special conditions that need to be met in order to make this so, or is the mere faulty construction of the DN sufficient for fatality? ( I ask because following the default notice of 28th November 2006 it is not until July 2009 that the account is assigned to Hillesdens.)

 

Cheers to all

 

Louis

[Louisdebroglie]

Jpeg version of my CCA...it really is this illegible..

[citizenB]

Your Default notice might not be invalid as you think. If issued prior to 19th December 2006, only 7 days were required.

[Louisdebroglie]

Thanks CB....I guess I'll just have to rely on an illegible, improperly executed agreement then.

 

Filed my defence today:

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

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

 

Also sent a CPR 18 request, as per previous posts.

 

I'll keep everybody informed.

 

Louis

[Docman]

CB,

 

You are correct that the Default Notice Regulations 2006 did take effect from 19 December 2006. However, the change from 7 to 14 days is to be found in S14 of the Consumer Credit Act 2006. This section took effect from 1 October 2006. In effect, the old Regulations were changed with effect from 1 October and then the Regulations were updated with effect from 19 December. I believe the statute takes precedence over the Regulations, so there is a good argument that 14 days should have been used after 1 October 2006.

[Louisdebroglie]

It is interesting because the form of the DN clearly tries to apply 14 days. It is due to the fact that they have not allowed for the required 2 days to post that it comes down to only 12 days. So it seems clear that they thought 14 days was required.

Out of interest, which is the stronger case: Illegible improperly executed application form OR Faulty DN...or is it a case of two strong arguments?

 

Louis

[Louisdebroglie]

OK. Posted my defence well within the time frame.

Aplins have replied to me at home saying they are surprised that I have requested more particulars as they had sent me a CCA previously, but have resent them to me again anyway.

 

Can I expect them now to re-issue particulars that refer to the agreement?

Do I need to amend my defence now that they have written to me?

Does the defence stand as the particulars are so vague, or can they continue with vague particulars and say "well we sent him documents even though they are not mentioned on the claim"....

 

Obviously I don't want to fall foul of the process....

 

Louis

[MARTIN3030]

Lou I see Docman has prev been advising here-I will alert to your recent questions,.

[gazbo34]

Hi Lou, Subbed with interest.Ive got a similiar case going with Aplins at the momement here :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?263672-Hillesden-Securities-Aplins-and-a-CCJ(1-Viewing)-nbsp

 

Will keep you updated with how i get on

 

Gazbo

[Docman]

Hi Louis

 

It is a bit difficult to advise without knowing what you actually said in the defence you filed. Was it exactly as quoted in post #16 above?

 

You need the permission of the court to submit an amended defence. Ususally, there is a paragraph added at the end of the 'embarassed' defence asking for permission to file an amended defence if the claimant's subsequently come up with documents that support their claim and submit an Amended Particulars of Claim.

 

Can you post up the wording you used if it is different from that in post #16 and scan in the agreement again. The jpeg image is very small and with a bad copy in the first place, it is also a bit difficult to read as well.

[Louisdebroglie]

Cheers for the reply Docman.

 

The defence is exactly as posted.I did not add in any request to amend my defence as the POC's disclosed nothing at all, no reference to documents at all. I assumed, perhaps wrongly, that if Aplins did not amend their POC's that the defence would stand as I have never requested them to provide me with "banking facilities", and there appears to be no case to answer.

I suppose the question is, even if they have sent me documents in the past and have corresponded with me over the last 12 months, are they allowed to make a claim with such unspecific POC's and simply rely on the fact that I must know what the claim is actually about because of all the previous correspondence, even if this is completely unreferenced in the POC's?

 

I can't repost the CCA until tomorrow when I get access to my scanner.

[Docman]

I think you wait until Aplins take the next step. They have 28 days to respond to your defence or the action will be stayed. If they do go ahead and the case is transferred to your local county court, Allocation Questionnaires will be issued and then either there will be an Allocation Hearing or probably a Case Management Conference [CMC] called by the District Judge. You will need to have be ready to argue your case at that hearing (effectively you will have written out your amended defence as your argument). The DJ may order Aplins to submit amended POCs at which point you should get a further 14/28 days to file an Amended Defence.

Alternatively, they could just go for summary judgment at which point you submit a witness statement opposing the application and set out your reasons for doing so (again effectively your amended defence).

[Louisdebroglie]

Thanks Docman.

 

I feel pretty secure that the agreement is irredeemably unenforceable as it does not contain the required terms.

Aplins have not needed to reconstruct the agreement as they claim that the application form IS the agreement. I feel that this strengthens my argument that the terms are therefore definitely missing in the original. I have a further assertion that the copy that they wish to rely on is so illegible as to be useless to them.

 

Anyway, I'll wait to see what Aplins do next, and thanks for the heads-up.

 

Louis