1st Credit & LCS Battle - court papers received - help

[AndyOrch]

Dont use the application as a defence, an error most LiP fall into, short, succinct, and to the point of your request.

 

Andy

[Undercover-Elsa]

Andy..thank goodness!!!

Exactly my thoughts.

Just agreement / dn /assignment ??

 

 

I seem to recall you have rather a neat unless order...may we pinch it?

[AndyOrch]

Of course Elsa

 

20 pages and we haven't got to the defence yet? got to be one of Elsa,s:lol:

 

Only joking sweetheart copy anything of use.

 

Andy

[Undercover-Elsa]

LOL...cheeky beggar.....I only fell in here on page 12..

 

 

Erm....What's a defence????

 

[Undercover-Elsa]

Hi,

OK I've now got blisters from the secateurs. I'm just chucking this on now for further comment and adjustment. I'm sure it still needs it. Newman..your words are all over my office floor.

 

Please will others comment/rip it to bits..

---------------------------------------------------------------------

 

N244

Box [3] of the N244 :

An order seeking the Claimant's compliance with information and documents requested pursuant to CPR part 18 and CPR 31.14.

Should the claimant fail to respond to my draft directions that the claim shall stand struck out without further order and costs to be considered and summarily assessed.

The application is made because of the Claimant's refusal to comply with the Defendant's two CPR 18 requests and CPR 31:14 request, thereby making it impossible for the Defendant to prepare a proper Defence.'

Box 4 : 'Yes'

Box 5 : 'Without a hearing'

Ignore Box 6

Box 7 : 'None'

Box 8e: 'District Judge'

In Box 9 write: 'Claimant'

In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write:

1.Firstly the Defendant takes issue with the Claimants pleadings. The particulars of claim made no mention of an agreement regulated by the Consumer Credit act 1974, upon which the claim is based, nor a Default Notice which is required under s87 before enforcement of such an agreement can take place. This has necessitated seeking confirmation from the Claimant via part 18 requests on 04/07/2011 and 21/07/2011, and a CPR 31.14 request.

2. In response to the request for a copy of a signed agreement relating to the claim, the Claimant stated:

"You have been provided with the agreement upon which we intend to rely. You acknowledged receiving it in your letter dated March 2010"

The defendant would clarify here that the agreement to which the Claimant refers was not a copy of a signed original agreement. What was supplied were two different reconstituted versions in response to a s77-79 request. Both inaccurate yet purporting to be an agreement which the defendant had signed. No indication has been given which of these two agreements the Claimant intends to rely on in Court. Furthermore the defendant does not believe that supplying conflicting reconstituted agreements more than a year ago is sufficient to satisfy the current 31.14 request for a copy of a signed agreement pertaining to this claim, and necessary for enforcement under s. 127(3) of the Consumer Credit Act 1974.

3.In response to the request for a copy of the Default Notice (and/or a copy of the communications log recording issuance plus proof of posting), the claimant simply stated: "You were advised that you were sent a default notice in May 2007" and "we further take the view that you are able to file and serve a defence in the absence of a default notice"

The defendant has never received a default notice, and no documentary evidence of issuance has been supplied by the claimant. The defendant respectfully points out that agreements regulated by the consumer Credit Act 1974 cannot be enforced until a compliant Default Notice has been issued.

The defendant therefore believes that evidence of the Default Notice is crucial to this case.

4. In response to a request for a current statement of account to show how the amount claimed is calculated, the claimant responded

. "the statement of account was included in a letter to you dated 21 April 2010"

(Newman - is the amount they are claiming the same as the amount on this 2010 statement?)

5. In response to a request for further time in order to prepare a defence following production of these documents, the claimant responded:

"we refer to your fourteenth paragraph and the last paragraph of our 19 July 2011 letter, thus your defence is to be filed by 18 August 2011. If you fail to file your defence by 18 August 2011 we will apply for judgment and if unpaid then we will enforce the judgment"

[Reference: The defendant's "fourteenth paragraph" was the request for additional time.

The claimant's "last paragraph" stated "As to your defence, we are instructed to consent to an extension of time. As the original limit was to expire on 21 July 2011, we will agree to an extension to 4pm on 18th August 2011. If you require further time you will be required to make an application."]

The defendant feels that this response is intimidating and unreasonable in the light of the Claimant's refusal to comply with disclosure.

　

　

The Defendant appreciates that his inexperience as a Litigant in Person led him to include far more in the CPR requests than, with hindsight, should have been included. However the core elements were valid requests and were specifically refused. Copies of the correspondence are enclosed, with the relevant points highlighted for ease of reference.

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 above 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;

Without production of the requested documents, the defendant is at a disadvantage and unable to serve a particularised 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 will inhibit the courts ability to deal with the case

The Defendant is concerned that the refusal of the Claimant to respond to his two CPR18 requests and his subsequent CPR 31:14 request puts him at risk of a default judgement without having the opportunity to defend himself within the deadline agreed by LCS of 16:00hrs on the 18 August 2011.

The Defendant therefore requests under CPR15:5 that a further extension of time is granted to allow the Claimant to comply with all of this order and to allow the Defendant sufficient time to prepare a defence should the Claimant provide the information detailed in this order

-------------------------------------------------------------------------

DRAFT ORDER FOR DIRECTIONS

Between

　

　

************* - Claimant

　

　

　

and

　

xxxxxxxxxx - Defendant

　

　

　

Draft Order for Directions

　

　

　

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

1.Copies of the Agreement and any documents/terms and conditions referred to within, which the claimant seeks to rely upon.

2. A copy of the Default Notice and Proof of Postage

3. A current full statement of account showing how the balance claimed is calculated

4. The Termination Notice

5. The Notice of Assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

6. Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant shall within 14 days thereafter file and serve the following:

An amended defence sufficiently particularised in response to the documents supplied by the claimant.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

　

　

------------------------------------------------------------------------

 

With thanks to Andy - I've blended your draft directions in with it.

Right- Happy Hour

[citizenB]

OMG..

 

I was asked to pop in.. but felt I couldnt adequately comment without reading first the thread fully !!

 

I think by not adhering to CPR correctly in the first instance you have created some problems for yourself, which you now need to adress and it looks as though both andy and Elsa appear to have sorted those for you.

 

Points I would like to make..

 

1: At one point you mentioned that 2 Notice of Assignments were sent to you - Why - by whom and were they different in any way.

 

2: Who owned the debt on 31/05/2007 ?

 

3: It isnt necessary for a company to have issued a Default Notice prior to assigning/selling on if the account had been maintained correctly. So in this instance I am surprised that Citi didnt issue one as the account was obviously in default at that point.

 

4: It would appear that at no time have you denied entering into an agreement, just that you required absolute evidence that the sum they are demanding was accurate. That they had the right to demand any sum by way of proof of ownership ie the Notice of Assignment. That the agreement had afforded you the protection of the CCA1974, which it appears it didnt from what I can see.

 

5: It also looks to me as though neither 1st Credit or their compadres have adhered to Pre action protocol, as you do not appear to have received the Default Notice or Letter before Action.

 

6: I also notice from your earlier posts that you were in a payment plan with Citi and that part of that plan was that interest was frozen. But then in a later post you say that interest had been added ??

[citizenB]

I guess you could have, by way of a properly prepared CPR Part 18, asked the question.

 

 

"You have provided two documents, both of which are claimed to be the agreement made under the CCA1974. Please confirm which document you intend to rely on in court"

 

I wonder if someone could confirm, even though the N244 is being submitted, can the Part 18 still be used ?

[citizenB]

This is what the notice says

The claimant claims the sum of 8,898.97 for debt and interest. The defendant was indebted to Citifinancial Europe PLC for credit advanced. The debt was assigned to the claimant. Notice of assignement was given to the defendant.

AND THE CLAIMANT CLAIMS

1 The sum of 6.727.12

2 Statutory interest pursuant to section 69 of the county Court Act 1984 at a rate of 8.00% per annum from 08/06/07 to 20/6/11 2,171.85 & thereafter at a daily rate of 1.47 until judgment or sooner payment

 

IF YOU WISH TO SPEAK TO US REGARDING THIS CLAIM THEN PLEASE CALL 0208 7370

 

Do we know who the telephone number belongs to ?

[BRIGADIER2JCS]

Code is for Ewell , Borehamwood, Whytlefe Chessington areas

[Gallahad]

There is a web site called who calls me where you can put teh number in and it will tell you who called.

Just google "who calls me"

G

[newman]

..

[newman]

sorry - made mistake

 

Just got in and wow such a lot of replies so before I get into answering these - I just want to say a huge thank you to everyone who has posted and also Hi to Citizen B - your input is also very much appreciated - Elsa & Andy - thanks v much too - the secateurs have worked very well!!!

 

Ok lets see if I can start to address the points asked.

 

ELSA

4. In response to a request for a current statement of account to show how the amount claimed is calculated, the claimant responded

. "the statement of account was included in a letter to you dated 21 April 2010"

(Newman - is the amount they are claiming the same as the amount on this 2010 statement?)

 

Yes its the same amount before the interest they have added on onto the POC £6727.12 and this is the right amount based on what the amount was then the debt was sold less the extra payments I made to Citi after the debt was sold.

Citizen B

OMG..

 

I was asked to pop in.. but felt I couldnt adequately comment without reading first the thread fully !!

 

I think by not adhering to CPR correctly in the first instance you have created some problems for yourself, which you now need to adress and it looks as though both andy and Elsa appear to have sorted those for you.I realise I have made some errors and again huge thanks to Andy & Elsa.

 

Points I would like to make..

 

1: At one point you mentioned that 2 Notice of Assignments were sent to you - Why - by whom and were they different in any way. No Idea why they sent two. Both were by Citi but the 1st one came on what looked like photcopied paper as it was black & white not Citi's coloured headed paper. This one was dated 11-06-07. 11 days after Citi sold the account to 1st Crud.

 

The second one was dated 05-11-2010!!!

 

I will scan them both in a while and post them up so you can have a look at them

 

2: Who owned the debt on 31/05/2007 ? Ah well that is an interesting question! on the 31/05/2011 a default was registered on my credit file and 1st credit are shown as the ones that registered it but the date on the NOA was 11/06/07. I only found out the account had been sold when I spoke to someone at 1st Credit on the 16th June. I also spoke to one of the Citi managers the same day who admitted that there was no record on his system of any letters being sent out to me to give me notice that a default was going to be registered on my credit file. Technically the answer to your question is Citi but as that was the date they sold it then I guess 1st credit owned it. Sorry if that has confiused the issue.

 

3: It isnt necessary for a company to have issued a Default Notice prior to assigning/selling on if the account had been maintained correctly. So in this instance I am surprised that Citi didnt issue one as the account was obviously in default at that point.

 

4: It would appear that at no time have you denied entering into an agreement, just that you required absolute evidence that the sum they are demanding was accurate. That they had the right to demand any sum by way of proof of ownership ie the Notice of Assignment. That the agreement had afforded you the protection of the CCA1974, which it appears it didnt from what I can see.

 

5: It also looks to me as though neither 1st credit or their compadres have adhered to Pre action protocol, as you do not appear to have received the Default Notice or letter before action. Correct, neither DN or LBA was sent

 

6: I also notice from your earlier posts that you were in a payment plan with Citi and that part of that plan was that interest was frozen. But then in a later post you say that interest had been added ?? Interest was frozen when the account was sold. Not sure which post you are referring to where I say interest had been addd do you have the post #? I may have been referring to the fact that 1st Crud have added for the whole time the account was in dispute.

 

Citizen B

I guess you could have, by way of a properly prepared CPR part 18icon, asked the question.

 

"You have provided two documents, both of which are claimed to be the agreement made under the CCA1974. Please confirm which document you intend to rely on in court"

I had this specific question ready in the letter I prepared this week but taking Elsa's advice I wont send that. Anyway based on the way they have responded to the CPR18 & 31:14 request they probably would have refused to answer it as it having no merit or stating they dont need to answer it.

 

IF YOU WISH TO SPEAK TO US REGARDING THIS CLAIM THEN PLEASE CALL 0208 7370

Do we know who the telephone number belongs to ?

 

No Idea and I just rang it but it doesnt ring and all you get is a voice saying "the other person has cleared".. There is nothing on the Who Called Me web site either.

Edited August 5, 2011 by newman

[newman]

OK here are both the NOA's - I have finally worked out how to post the actual images up!!!! Thanks to photobucket - the 1st one has my scribbling on it!!!

 

The last statement I have is dated 11th May 2007 and has a balance of £6787.12 and we made a payment of £6 on the 29th May 07 so the balance on the assignment notice is correct at £6781.12

 

 

Edited August 5, 2011 by newman

[AndyOrch]

Assigned twice 3 years apart, did First Crud sell it back to them to buy it back again 3 years later? Shady dealings

 

Andy

[newman]

Assigned twice 3 years apart, did First Crud sell it back to them to buy it back again 3 years later? Shady dealings

 

Andy

 

Hi Andy

Yes I would agree and what is even more interesting is that a Mr Peter Cazley from the Office of the Cheif exec of Citi wrote to me on the 12th February 2008 stating the following

"THis letter is further to the Final Response issued by my colleague (Mr Ross Derbyshire).

 

Thank you once again for taking the time to contact us about your previously held Platinum Visa Card account from Citi, in which you asked us to provide copies of your agreement with Citi Financial under Section 78 of the Consumer Credit Act 1974.

 

We have to inform you that we are under no obligation to comply with a request for a copy of your agreement under the Consumer Credit Act as we no longer have a contractual relationship with you, now are we seeking to enforce any agreement against you. Your right to be provided with this information from Citi Financial ended with the assignment of your debt to 1st Credit Limited.

 

The above account was passed to 1st Credit Limited on the 31st May 2007 due to the payment history on it, and is now under their responsibility.

 

Blah blah blah etc etc

 

Note that this letter is dated 12 Feb 2008 and Mr Cazley states that my account was "passed" to 1st Credit on the 31st May 2007 yet the 1st NOA was dated 11-06-07!!!

 

If you notice what the 1st NOA actually says it states that "This letter is to inform you that, with effect from the date at the top of this letter, under a written assignment, we have assigned your contract to 1st Credit blah blah blah

 

So we have the NOA saying that as of the 11-06-07 the account was assigned and Mr Cazleys letter saying that as of the 31-05-07 the account was assigned!!!!

Edited August 5, 2011 by newman

[AndyOrch]

Hi Newman

 

No wonder you are up to 20 pages with this nonsense.Have they ever (either shower) complied with your section 78 Request?

Sorry if I'm going over old ground only subscribed to your dilemma today.

 

Andy

[newman]

Hi Newman

 

No wonder you are up to 20 pages with this nonsense.Have they ever (either shower) complied with your section 78 Request?

Sorry if I'm going over old ground only subscribed to your dilemma today.

 

Andy

 

In a word Andy - NO! They claimed in a letter dated 21-04-2010 they had(which I think I have posted in this thread but cant find it at the moment), however they sent two agreements through in the same envelope which have both been attached in a previous post (again cant remember what post #)

 

and I quote

"The copy agreement which was sent to you is a true copy of your agreement with Citi Financial and from your comments it appears necessary to clarify the definition of a "true copy" of an agrement.

 

Where a Creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 apply. Regulation 3(1) sets out that "every copy of an executed agreement... shall be a true copy".

 

Regulation 3(2) goes on to state that there may be various information omitted from the true copy. Details which are not required to be in the agreement by law include the signature box, signature and date of signature. Therefore the efect of Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement.

 

Therefore 1st Credit has complied with the obligations of the law and has provided you with a true copy of the agreement.

 

For your records and pursuant to your CCA Section 78 request, your statement of account is as follows:-

 

a) The state of the account = £6,727.12 outstanding.

b) |The amount if any, currently payable under the agreement by the debtor to the creditor = £6,737.22

c) The amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor = £6,727.12

 

As the Copy Agreement and Statement of Account has been has been supplied our obligations regarding your request for information under section 78 of the Consumer Credit Act 1974 have been fulfilled and the default no longer continues.

[AndyOrch]

So the assignee sent you a reconstituted, the OC claimed the account was assigned when you requested from them(even though it wasn't as per your letter above)

Therefore the OC is in default of your request under a section 78 request and was not in a position to assign and neither is the Assignee allowed to litigate

because the Assignor was and still remains in default of said request.

 

Andy

[newman]

A..

[newman]

So the assignee sent you a reconstituted, the OC claimed the account was assigned when you requested from them(even though it wasn't as per your letter above)

Therefore the OC is in default of your request under a section 78 request and was not in a position to assign and neither is the Assignee allowed to litigate

because the Assignor was and still remains in default of said request.

 

Andy

 

:) - I am not sure I understand what you have just written there - and I have just found the letter so will attach it here too

 

Also I have attached the letter they sent along with the 2 agreements - as its all the way back on page 15

 

Andy Can you please explain your statement as I am not sure I understand it - particularly the last bit - and also how can I use this against them?

 

Thanks very much.

100421 letter from 1st C response to my letter dated 08-03-10.pdf

1stC undated letter 2 CCA copies.pdf

Edited August 5, 2011 by newman

[AndyOrch]

Yes but you made the request to CiTi they still owned it at that stage (even though he stated they didn't the date on the first NoA proves he was incorrect)

Therefore CiTi should have provided the agreement and by not complying they was and still are default. A creditor can not actively collect or litigate on an account in dispute or Assign it come to that.

 

The letter you have just posted is First Cruds attempt to cover the default on behalf of the CiTi .They shouldn't have sent the reconstituted or any they didn't own it at the time you requested it.They are working together to cover the dodgy assignment.

 

make sense?

 

Andy

[newman]

Yes but you made the request to CiTi they still owned it at that stage (even though he stated they didn't the date on the first NoA proves he was incorrect)I made the 1st request for my CCA to 1st Credit on the 21st June 2007

Therefore CiTi should have provided the agreement and by not complying they was and still are default. A creditor can not actively collect or litigate on an account in dispute or Assign it come to that. They had already sold it to 1st credit on the 31st may 2007

 

The letter you have just posted is First Cruds attempt to cover the default on behalf of the CiTi .They shouldn't have sent the reconstituted or any they didn't own it at the time you requested it.They are working together to cover the dodgy assignment.

 

make sense? Not sure but I think I can see where you are coming from - the problem here is that Citi sold the account on the 31 May 07 and I made a request to 1st Credit after that. - Really sorry am I missing something??

 

Andy

 

Also I have just looked back through the file and on the advice of the Fin Ombudsmen I wrote a letter to a Ms Singh Service making a formal complaint and asking why I had received no communication from them re the default notice etc - I have never received any response whatsoever to that letter!!- Here it is

 

I am writing to register a formal compliant against your company and to ask if you can investigate this complaint and write back to me as a matter of urgency.

 

I have received a letter from your company on Friday last week informing me that the outstanding balance and my account has been assigned to 1st credit from the 11th June 2007. I contacted 1st Credit on Saturday to discuss this matter with them and they have informed me that not only has the account been assigned to them but in fact that the total debt has been sold to them and that a default has been registered on my credit file. I have had no correspondence whatsoever from Citi Bank informing me that this was going to happen.

 

I also spoke with one of your managers, Mr David Fell, on Saturday 16th June who admitted that he had no record on my file of any letters being sent out to me from Citi bank to give me notice that a default was going to be registered on my credit file.

 

I have a written agreement with your company to make reduced payments which I have been doing by standing order since November 2006. I have not at any time had any correspondence from your company informing that you were unhappy with this arrangement nor indeed any warning that my account was to be sold to anther company and that a default would be registered on my credit file. I have enclosed a copy of a letter that was sent to me by Citi Bank.

 

I have been in consultation with the CCCS regarding this matter and I have written a number of times to your company keeping you up to date with my circumstances and enclosing my financial overview on CCCS headed paper. As recently as March I increased the amount I have been paying to your company and wrote to Paul Campbell head of collections informing him of this fact. As your company has been accepting my payments and have not given me any indication to the contrary I have assumed that there were no problems. If the arrangement was no longer acceptable to Citi bank then it perhaps would have been prudent for someone from your company to inform me of this.

 

I have been in touch today with both the CCCS and the Financial Ombudsmen to discuss this matter. The FO has also raised a complaint against your company on my behalf and they have written to you requesting that this matter be investigated.

 

I am requesting that a full explanation be given to me as to why this has happened and that with immediate effect that this default be removed from my credit file. Obviously this matter has caused my wife and I a great deal of stress over the weekend and we expect this to be dealt with as a matter of top priority.

 

I do not wish to discuss this matter with anyone from your company on the telephone and request that ALL correspondence is carried out in writing to my home address and also request that any phone number you have on your file for me be removed from your database.

 

I have enclosed copies of relevant letters for you.

 

 

Yours sincerely

 

xxxxxxxxx

Edited August 6, 2011 by newman

[AndyOrch]

Yes I take your point Newman thought I had found an error.Still the 2 NoAs need clarification cant see how a company can assign the same debt twice.

 

Bedtime beckons now Newman long week.

 

Andy

 

Ps the second letter you posted above is a fishing trip in an attempt to get your signature possible Photoshop creation?

[newman]

Yes I take your point Newman thought I had found an error.Still the 2 NoAs need clarification cant see how a company can assign the same debt twice.

 

Bedtime beckons now Newman long week.

 

Andy

 

Ps the second letter you posted above is a fishing trip in an attempt to get your signature possible Photoshop creation?

 

Cheers Andy and sleep well - I am turning in too very soon.

 

They never got my signature

 

What I am tryng to turn my attention to now is not only how I can win this case but what compen may I be due to for the way they have dealt with me. - thats another question

 

Thanks again

[AndyOrch]

When is your defence due? forget compensation concentrate on winning the claim.

Im subscribed to your thread now so ill pop in nearer the time. Elsa is doing a sterling job.

I do need to check your application over properly though before you dispatch it.

 

Andy