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

[BRIGADIER2JCS]

I think that a complaint regarding the abuse of the

Insolvency Service is a must.

OFT and the cosy industry ''watchdog'' the CSA.

[newman]

I think that a complaint regarding the abuse of the

Insolvency Service is a must.

OFT and the cosy industry ''watchdog'' the CSA.

 

Thanks Brig - I think under the circumstances I agree as we made it very clear we were not in a position to pay the amount in full and did offer an alternative option but they decided to take probably the most agressive stance they could. THe latest OFT guidelines of OCt 2011 make it very clear that this kind of practice is totally contrary to their guidelines.

 

Well a letter has arrived from them this morning as follows -

Dear Sir

 

Thank you for your fax dated 28 February

 

We acknowledge receipt of your payment of £500.20. In the circumstances, we confirm no further action will be taken on the Statutory demand served upon you.

 

As to the balance due we are unable to advise on acceptability without completion of a Financial Statement. We enclose a copy for completion and return by 15 March 2012.

 

We look forward to hearing from you.

 

Yours faithfully

 

Legal Department

1st Credit Limited

 

I find it very interesting that they say they unable to make a decision on whether or not they are going to accept my offer of £124 a month (which is more than double what we were offering to pay previously) without me completing their financial statement.

 

They don't need a financial statement from me in order to decide whether they are going to accept £124 a month. Thats what we will be paying.

 

EDIT

 

A response has been prepared to their letter which I will post up after it has been received at their office.

Edited March 2, 2012 by newman

[newman]

Well this all gets very interesting

 

I sent the letter mentioned in the last post and I have just received a response - Its amazing that this company seem to feel it is perfectly acceptable to refuse to answer several CPR requests yet as soon as I decline to give them information they asked for they get very heavy. Double standards at work here I think.

 

Here is my letter and their response.

 

Legal Department

xxxxxx

1st Credit (Finance) Ltd

xxxxxxx

The Omnibus Building

xxxxxxxx

Lesbourne Road

xxxxxxxx

Reigate

Surrey

RH2 7JP

 

2nd March 2012

 

 

Dear Sirs,

 

REF No; XXXXXXXXXX Payment of Balance of Statutory Demand

 

Thank you for your letter dated 01st March 2012 confirming receipt of my payment of £500.20 and also confirming that no further action will be taken on the Statutory Demand served upon me.

 

With respect to your request for me to complete your financial statement, as you are aware from previous correspondence I have confirmed that I am not in a position to pay the costs order in full and I have further confirmed that I will repay the balance of £744 in six equal instalments of £124 starting on the 28th March 2012, which is significantly more than the original £50 a month I was able to offer when I wrote to the court.

 

The only reason I have been able to make the first payment of £500.20 and then pay £124 each month thereafter is that I am very kindly being assisted in this matter by a relative who will be paying £124 to me each month in good time for my payment to reach you on the 28th of each month. My relative does not wish to disclose their bank details to any third party, which is why I will be making the payment directly to your company.

 

As the money to pay the balance of the costs order will be coming from a relative, I see no reason to complete a financial statement as it will have no bearing whatsoever on what I can pay you each month and I therefore have to respectfully decline your request.

 

I will make my next payment of £124 to you on the 28th of this month and thereafter will pay the same amount on the same date each month until the balance is paid in full on the 28th August 2012.

 

Yours faithfully

 

XXXX XXXX

 

And their response to this!

 

Dear Sir

Re 1st Credit (Finance) Ltd

 

Thank you for your letter dated 2 MArch 2012

 

We have considered your offer of payment against the fact that that the order for costs was for payment forthwith. We also note your refusal to voluntarily complete the statement of income and expenditure.

 

We are therefore arranging for the issue of an Order to attend for Questionning under Part 71 CPR. You will be served with the order in diue course.

 

Yours faithfully

Legal Department

1st Credit Limited

[newman]

The other update is that I have received their AQ & response to my defence.

 

I will post up the text of their AQ and also I have combined their response with my defence too and will post that as a separate post.

 

 

1st CREDIT ALLOCATION QUESTIONNAIRE & PROPOSED FAST TRACK DIRECTIONS

 

 

1. ALLOCATION QUESTIONNAIRE

 

Have you sent a copy of this completed form to the other party Yes

 

I Confirm I have explained to my client need to try to settle etc Yes

 

A. SETTLEMENT

 

For All

 

1. Given that the rules require you to try to settle the claim beforethe hearing, do you want to attempt to settle at this stage? Yes

 

If yes do you want a one month stay Yes

 

COurt arrange mediation appointment - No

 

B. LOCATON OF TRIAL

 

Is there any reason why your claim needs to be heard at a particular court? No

 

C. PRE-ACTION PROTOCOLS

 

You are expected to comply with the relevant pre-action protocol.

 

Have you done so? Yes

 

If No, explain why?

 

D. CASE MANAGEMENT INFORMATION

 

What amount of the claim is in dispute? £8,898.97 THIS IS DIFFERENT TO WHAT i PUT ON MY AQ - I PUT THE TOTAL AMOUNT FROM THE POC WHICH WAS THE £8,898.97 PLUS £290 FOR COURT FEE & SOLICITORS COSTS GIVING A TOTAL OF $9,188.97 - THE TOTAL ON THE ORIGINAL POC.

 

Applications

Have you made any application(s) in this claim? No

 

Witnesses

 

Colin Watts The facts of this claim

 

Experts No

 

Track Fast Track

 

If you have indicated a track which would not be the normal track for the claim, please give a brief reason for your choice:

 

E TRIAL OR FINAL HEARING

 

How long do you estimate the trial or final hearing will take? 1 Day

 

Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or hearing? No

 

F PROPOSED DIRECTIONS

 

Have you attached a list of the directions you think appropriate for the management of the claim? Yes

 

If Yes, have they been agreed with the other party? Yes

 

G COSTS

 

Estimate of costs incurred to date £3,750.00

 

Estimate of overall costs likely to be £14,750

 

H FEE

 

Have you attached the fee for filoing this AQ Yes

 

 

I OTHER INFORMATION

 

Have you attached documents to this questionnaire? Yes

 

Have you sent these documents to the other party Yes

 

If Yes, when did they receive them? day after posting

 

Do you intend to make any applications in the immediate future? No

 

If Yes, what for?

 

In the space below set out any other information you consider will help the judge to manage the claim

 

We refer to the Claimant's proposed directions & contend these are in accordance with the CPR, are proportionate and appropriate and sufficient for this claim.

 

The defendant prematurely sought disclosure and his application was dismissed on 30 November 2011. The defendant's submissions and proposed directions are another attempt at the same issue - they are incorrect and disproportionate.

 

The defendant has failed to fully comply with the 30 November 2011 order and £744.00 remains due and owing. The defendant'e comments regarding

 

 

CLAIMANTS PROPOSED FAST TRACK DIRECTIONS

 

IN THE CHELMSFORD COUNTY COURT

CLAIM NO. XXXXXXXXX

BETWEEN

 

1st CREDIT (FINANCE) LIMITED

Claimant

 

and

 

xxxxx xxxxx

Defendant

 

 

CLAIMANT'S PROPOSED

FAST TRACK DIRECTIONS

 

1. This claim be allocated to the fast track;

2. By 16.00 on 16 April 2012 the claimant and defendant shall give standard disclosure by list of documents, such lists to include a disclosure statement.

3. By 16.00 on 23 April 2012 the claimant and defendant shall give inspection.

4. The time for service on another party for request for clarification of further information based on any document served by another party is 16.00 on 14 May 2012.

5. The requests to be answered by 16.00 on 28 May 2012.

6. By 16.00 on 18 June 2012 the claimant and defendant shall exchange the witness statement of witnesses of fact on whom that party intends to rely.

8. The time for service on another party for request for clarification of further information based on any witness statement served by another party is 16.00 on 09 July 2012.

9. The requests to be answered by 16.00 on 23 July 2012.

10. By 16.00 on 06 August 2012 the claimant and defendant must file a completed pre-trial check list.

11. The timetable for the trial may be agreed by the parties, subject to the approval of the trial judge.

12. The claimant shall lodge an indexed bundle of documents contained in a ring binder and with each page clearly numbered at the court not more than 7 days and not less than 3 days before the start of the trial.

13. A case summary (which should not exceed 250 words) outlining the matters still in issue, and referring where appropriate to the relevant documents shall be included in the bundle for the assistance of the judge in reading the papers before the trial. The parties shall seek to agree the contents of the trial bundle and the case summary.

14. Each party must inform the court immediately if the claim is settled whether or not it is then possible to file a draft consent order to give effect to their agreement.

15. Costs in the claim.

[newman]

And also their response to my defence statement

 

IN THE CHELMSFORD COUNTY COURT BETWEEN

 

CLAIM NO. xxxxxxxxx

 

1st CREDIT (FINANCE) LIMITED

Claimant

 

and

 

XXXX XXXX

Defendant

 

REPLY TO THE DEFENCE

1. Save where otherwise indicated or admitted, the Claimant requires the Defendant to prove the facts and matters set out in the Defence.

2. As to paragraph 2 of the Defence:

 

2.1. The Claimant notes, and refutes, the suggestion that the Particulars of Claim do not comply with the relevant Civil Procedure Rules.

2.2. The Claimant denies that the facts and matters set out in the Particulars of Claim failed to disclose a cause of action.

 

As to paragraph 3 of the Defence, the Claimant repeats paragraph 2 above. Without prejudice to that general denial, the Claimant sets out below voluntary further particulars of its case:

3.1. By an agreement made under account number XXXXXX on or about 28 March 2003, Citifinancial Europe PLC ("the Original Creditor") agreed to issue a credit card to the Defendant for the purpose of acquiring goods and services on credit. The agreement was regulated by the Consumer Credit Act 1974.

3.2. The Defendant agreed inter alia to pay the original creditor each month at least the minimum amount due under the terms of the agreement. The Defendant thereafter made use of the credit card to acquire goods and services.

3.3. In breach of the agreement, the Defendant failed to make regular payment in accordance with the agreement.

3.4. By a notice of default and termination served on or before 8 May 2007, the Original Creditor required the Defendant to remedy his breach of the agreement by paying £,379.73 within the prescribed period and gave notice that, in default of so doing, further enforcement action might be taken.

 

3.5. On or about 10 May 2007, presumably in response to the said default notice, the Defendant sent a letter to the original Creditor. He enclosed a financial statement and stated that he was in financial difficulty and offered to increase his monthly payments to £10 per calendar month. This offer was not accepted by the original Creditor.

3.6. The Defendant failed to remedy the breach within the said prescribed period. As a result the Defendant became entitled to take enforcement action.

3.7. Further, by reason of his failure to remedy the said breach, the Defendant became liable to pay all of the sums outstanding on the account.

3.8. In or about June 2007 the Original Creditor assigned its rights under the agreement to the Claimant. By a notice in writing dated 11 June 2007, sent by post to the Defendant at the account address, the Original Creditor duly notified the Defendant of the assignment. The Defendant acknowledged receipt of the said notice in his letter to Ms Singh of the Original Creditor dated 18 June 2007.

3.9. The Claimant has made various written requests for payment of the sums due. In spite of these requests, the Defendant has failed, and refuses, to pay the sums due or any part thereof.

 

3.10. In the premises, the Claimant is therefore entitled to the sum of £6,727.12 plus statutory interest as pleaded.

 

4. As to paragraphs 4 and 5 of the Defence:

4.1. The Claimant admits that the Defendant made a statutory request pursuant to section 78 of the Consumer Credit Act 1974.

4.2. The Claimant admits and avers that it responded to, and satisfied, that request by providing a true copy of the said agreement in accordance with regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and the subsequent guidance thereto provided by His Honour judge Waksman QC in the case of Carey -v-HSBC Bank [2009] EWHC 3417.

 

5. As to paragraph 8 of the Defence:

5.1. It is admitted that no notices of sums in arrear have been served by the original creditor or by the Claimant. It is denied, however, that either the original Creditor or the Claimant was obliged to serve any such notices. This is because the said agreement had been terminated before the date for the commencement of section 9 of the Consumer Credit Act 2006, namely 1 October 2008.

5.2. It is denied that the Claimant's entitlement to statutory interest is curtailed or extinguished by virtue of S11991/1184.

 

5.3. In the premises, it is denied that the Claimant is unable to enforce its contractual rights as alleged or at all.

Toby Riley-Smith

 

STATEMENT OF TRUTH

The Claimant believes that the facts stated in this Reply are true. I am duly authorised by the Claimant to sign this Reply.

05 May 2012 Legal Department

1st Credit (Finance) Limited of The Omnibus Building, Lesbourne Road, Reigate, Surrey RH2 7JP.

 

CLAIM NO. xxxxxxxx

 

IN THE CHLEMSFORD COUNTY COURT

 

BETWEEN

 

1st CREDIT (FINANCE) LIMITED

Claimant

 

and

 

xxxx xxxx

Defendant

REPLY TO THE DEFENCE

 

1 Credit (Finance) Limited The Omnibus Building Lesbourne Road Reigate

Surrey RH2 7JP

 

Tel 01737 228349 Fax 01737 887849

 

Ref RDM/CW/M25902

[Andyorch]

Well this all gets very interesting

 

I sent the letter mentioned in the last post and I have just received a response - Its amazing that this company seem to feel it is perfectly acceptable to refuse to answer several CPR requests yet as soon as I decline to give them information they asked for they get very heavy. Double standards at work here I think.

 

Here is my letter and their response.

 

Legal Department

xxxxxx

 

1st Credit (Finance) Ltd

xxxxxxx

 

The Omnibus Building

xxxxxxxx

 

Lesbourne Road

xxxxxxxx

 

Reigate

Surrey

RH2 7JP

 

2nd March 2012

 

 

Dear Sirs,

 

REF No; XXXXXXXXXX Payment of Balance of Statutory Demand

 

Thank you for your letter dated 01st March 2012 confirming receipt of my payment of £500.20 and also confirming that no further action will be taken on the Statutory Demand served upon me.

 

With respect to your request for me to complete your financial statement, as you are aware from previous correspondence I have confirmed that I am not in a position to pay the costs order in full and I have further confirmed that I will repay the balance of £744 in six equal instalments of £124 starting on the 28th March 2012, which is significantly more than the original £50 a month I was able to offer when I wrote to the court.

 

The only reason I have been able to make the first payment of £500.20 and then pay £124 each month thereafter is that I am very kindly being assisted in this matter by a relative who will be paying £124 to me each month in good time for my payment to reach you on the 28th of each month. My relative does not wish to disclose their bank details to any third party, which is why I will be making the payment directly to your company.

 

As the money to pay the balance of the costs order will be coming from a relative, I see no reason to complete a financial statement as it will have no bearing whatsoever on what I can pay you each month and I therefore have to respectfully decline your request.

 

I will make my next payment of £124 to you on the 28th of this month and thereafter will pay the same amount on the same date each month until the balance is paid in full on the 28th August 2012.

 

Yours faithfully

 

XXXX XXXX

 

And their response to this!

 

Dear Sir

Re 1st Credit (Finance) Ltd

 

Thank you for your letter dated 2 MArch 2012

 

We have considered your offer of payment against the fact that that the order for costs was for payment forthwith. We also note your refusal to voluntarily complete the statement of income and expenditure.

 

We are therefore arranging for the issue of an Order to attend for Questionning under Part 71 CPR. You will be served with the order in diue course.

 

Yours faithfully

Legal Department

1st Credit Limited

 

 

Wow utterly flabbergasted Newman, this is personal now, they don't believe you cant pay it and so now you will attend court to disclose your financial affairs.

Committal offense if you don't attend!!!!

Edited March 15, 2012 by Andyorch

[newman]

]I also thought it might be helpful to show the combination of both my defence and their response.

 

There are so many things in their response that are just basically wrong, factually incorrect and also there are many statements which are just totally incorrect assumptions. It is unbelievable really that even at this stage they are still trying to get out of giving full disclosure.

 

I have made many comments in my own records, however I will not add any comments to this post as I don't want any prying eyes to see just how totally incorrect their response actually is.

 

My defence is in black text and their response is in red text.

 

In the Hertford County Court

Claim Number xxxxxxx

 

Between

 

1st Credit (Finance) Limited - Claimant

 

And

 

xxxx xxxxx – Defendant

 

 

1. I, xxx xxxx , of xxxxxxxxxxxxxxxxx, am the Defendant in this action and make the following statement in response to the Claimants claim dated 20th September 2011.

 

1. Save where otherwise indicated or admitted, the Claimant requires the Defendant to prove the facts and matters set out in the Defence.

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, as they fail to comply with the Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3.

2 As to paragraph 2 of the Defence:

 

2.1 Until such time that the Claimant is ordered to plead pursuant to CPR16 and attach documents on which their claim is based upon, I am unable to verify or plead a full and particularised defence.

2.1. The Claimant notes, and refutes, the suggestion that the Particulars of Claim do not comply with the relevant Civil Procedure Rules.

 

2.2 The Claimant has not provided any assertions or legal cause of action in his Particulars of Claim; it is merely their version of the facts which are inconclusive and factually incorrect in places. It is averred the Claimant has failed to state on what basis this claim is made, has failed to provide the basis on which this is drawn or provide any proof. Due to this, except where otherwise mentioned in this defence, I am unable to admit or deny any allegations in this defence.

 

2.2. The Claimant denies that the facts and matters set out in the Particulars of Claim failed to disclose a cause of action.

 

2.3 The Defendant is unable to admit or deny that the Claimant is entitled to the sums claimed and the Claimant is put to strict proof in respect of the same.

 

 

3. The Claimant states in the Particulars of Claim, that the defendant was indebted to Citi Financial Europe Plc for credit advanced, however, no particulars have been given of how the purported debt arose or the amount claimed is calculated.

 

3. As to paragraph 3 of the Defence, the Claimant repeats paragraph 2 above. Without prejudice to that general denial, the Claimant sets out below voluntary further particulars of its case:

[/color]

 

3.1 In particular no form of credit agreement is described, referred to, or disclosed despite numerous requests by the Defendant under Civil Procedure Rules. Similarly no indication is given that any of the steps required by Statute in respect of consumer agreements have been taken in order to establish cause of action.

 

3.1. By an agreement made under account number xxxxxxxxxxxx on or about 28 March 2003, Citifinancial Europe PLC ("the Original Creditor") agreed to issue a credit card to the Defendant for the purpose of acquiring goods and services on credit. The agreement was regulated by the Consumer Credit Act 1974.

 

3.2. The Defendant agreed inter alia to pay the original creditor each month at least the minimum amount due under the terms of the agreement. The Defendant thereafter made use of the credit card to acquire goods and services.

 

3.3. In breach of the agreement, the Defendant failed to make regular payment in accordance with the agreement.

 

3.4. By a notice of default and termination served on or before 8 May 2007, the Original Creditor required the Defendant to remedy his breach of the agreement by paying £,379.73 within the prescribed period and gave notice that, in default of so doing, further enforcement action might be taken.

 

3.5. On or about 10 May 2007, presumably in response to the said default notice, the Defendant sent a letter to the original Creditor. He enclosed a financial statement and stated that he was in financial difficulty and offered to increase his monthly payments to £10 percalendar month. This offer was not accepted by the original Creditor.

 

3.6. The Defendant failed to remedy the breach within the said prescribed period. As a result the Defendant became entitled to take enforcement action.

 

3.7. Further, by reason of his failure to remedy the said breach, the Defendant became liable to pay all of the sums outstanding on the account.

 

3.8. In or about June 2007 the Original Creditor assigned its rights under the agreement to the Claimant. By a notice in writing dated 11 June 2007, sent by post to the Defendant at the account address, the Original Creditor duly notified the Defendant of the assignment. The Defendant acknowledged receipt of the said notice in his letter to Ms Singh of the Original Creditor dated 18 June 2007.

 

3.9. The Claimant has made various written requests for payment of the sums due. In spite of these requests, the Defendant has failed, and refuses, to pay the sums due or any part thereof.

 

3.10. In the premises, the Claimant is therefore entitled to the sum of £6,727.12 plus statutory interest as pleaded.

 

4. For the avoidance of doubt, please note that, in response to a s.78 request in 2007, the Claimant supplied 2 sets of differing templated documents, both purporting to be reconstitutions of an original signed agreement. The Defendant was informed in a letter dated 19th July 2011 that the Claimant intends to rely on these documents in support of their claim. They have not clarified which of these differing documents is averred to be the true copy. (Copies of this documentation were supplied by the Claimant to the court as an exhibit dated 18th November 2011, marked “Exhibit CW2 To The Witness Statement of Colin Watts” for the hearing on the 30th November 2011.)

 

As to paragraphs 4 and 5 of the Defence:

4.1. The Claimant admits that the Defendant made a statutory request pursuant to section 78 of the Consumer Credit Act 1974.

4.2. The Claimant admits and avers that it responded to, and satisfied, that request by providing a true copy of the said agreement in accordance with regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and the subsequent guidance thereto provided by His Honour judge Waksman QC in the case of Carey -v-HSBC Bank [2009] EWHC 3417.

 

5. The Defendant pleads that the reconstructions relied upon are of no merit. The content of the two documents is generic and there is no evidence that either of them is a true representation of an original agreement that the Claimant claims the defendant entered into with the original creditor.

 

 

6. The Defendant therefore puts the Claimant to strict proof of the existence of the original document and the terms and conditions therein, and in evidence of this to disclose an original signed agreement relevant to this claim. Clearly, as the agreement in question predates April 2007 and being regulated by the Consumer Credit Act 1974, production of this document is required for enforcement by the court. It was established in Carey vs HSBC Bank PLC that supply of reconstructed copies is only appropriate to satisfy information requests under s78, not proof purpose of an executed agreement for enforcement by a court.

 

 

7. Notwithstanding the above points, the Defendant puts the Claimant to strict proof that any Default Notice sent to him was valid. Service of a Default Notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a valid Default Notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement.

 

 

7.1 The Defendant also notes that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment

Regulations the Consumer Credit (Enforcement, Default and Termination

Notices)(Amendment) Regulations 2004 (SI 2004/3237).

 

 

8. No Arrears Notices were ever issued by the Claimants to facilitate any interest charge and the Defendant contends that the Claimants should be aware that in these circumstances no interest is allowed as per section 86A-86D of the 1974 Act (sections 8-11 of the 2006 Act) and the Consumer Credit (Information Requirements and Duration of Licences and Charges) Regulations 2007 (regulations 19-26 and Schedule 3) retrospectively.

5. As to paragraph 8 of the Defence:

5.1. It is admitted that no notices of sums in arrear have been served by the original creditor or by the Claimant. It is denied, however, that either the original Creditor or the Claimant was obliged to serve any such notices. This is because the said agreement had been terminated before the date for the commencement of section 9 of the Consumer Credit Act 2006, namely 1 October 2008.

 

5.2. It is denied that the Claimant's entitlement to statutory interest is curtailed or extinguished by virtue of S11991/1184.

 

 

8.1 It is noted that the Claimant has included section 69 interest within the debt amount. It is averred that this has yet to decided by the court and at what rate and whether applicable to a debt covered by the CCA1974.

 

 

8.2 The Defendant contends that the Claimant should be aware they are not entitled to claim S69 interest by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

• 2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

8.3 The claimant has failed to particularise the amount claimed or state how much of the balance comprised unlawful charges and interest upon such charges.

 

 

9. In the above circumstances the facts and matters set out in the Particulars of Claim do not give rise to an entitlement to claim any of the relief now sought by the Claimant. The Claimant’s claim to be entitled to £8,898.97 including interest or to any other sum is denied.

 

 

9.1 The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit. The Defendant requests the Courts permission to amend this defence at such time the Claimant be compelled to comply and disclose, separately or at standard disclosure, the valid and necessary documentation to support their claim.

 

 

Statement of Truth

 

I XXXXX XXXXXX believe the above statement to be true and factual

 

Signed………………………………………………………………………..

 

Date Friday 27th January 2012

 

 

any comments in my own records, however I will not add any comments to this post as I don't want any prying eyes to see just how totally incorrect their response actually is.

 

My defence is in black text and their response is in red text.

 

In the Hertford County Court

Claim Number xxxxxxx

 

Between

 

1st Credit (Finance) Limited - Claimant

 

And

 

xxxx xxxxx – Defendant

 

 

1. I, xxx xxxx , of xxxxxxxxxxxxxxxxx, am the Defendant in this action and make the following statement in response to the Claimants claim dated 20th September 2011.

 

1. Save where otherwise indicated or admitted, the Claimant requires the Defendant to prove the facts and matters set out in the Defence.

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, as they fail to comply with the Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3.

 

2 As to paragraph 2 of the Defence:

 

2.1 Until such time that the Claimant is ordered to plead pursuant to CPR16 and attach documents on which their claim is based upon, I am unable to verify or plead a full and particularised defence.

2.1. The Claimant notes, and refutes, the suggestion that the Particulars of Claim do not comply with the relevant Civil Procedure Rules.

 

2.2 The Claimant has not provided any assertions or legal cause of action in his Particulars of Claim; it is merely their version of the facts which are inconclusive and factually incorrect in places. It is averred the Claimant has failed to state on what basis this claim is made, has failed to provide the basis on which this is drawn or provide any proof. Due to this, except where otherwise mentioned in this defence, I am unable to admit or deny any allegations in this defence.

 

 

2.2. The Claimant denies that the facts and matters set out in the Particulars of Claim failed to disclose a cause of action.

 

[COLOUR=BLACK]2.3 The Defendant is unable to admit or deny that the Claimant is entitled to the sums claimed and the Claimant is put to strict proof in respect of the same.

 

 

3. The Claimant states in the Particulars of Claim, that the defendant was indebted to Citi Financial Europe Plc for credit advanced, however, no particulars have been given of how the purported debt arose or the amount claimed is calculated.[/COLOUR]

 

3. As to paragraph 3 of the Defence, the Claimant repeats paragraph 2 above. Without prejudice to that general denial, the Claimant sets out below voluntary further particulars of its case:

 

3.1 In particular no form of credit agreement is described, referred to, or disclosed despite numerous requests by the Defendant under Civil Procedure Rules. Similarly no indication is given that any of the steps required by Statute in respect of consumer agreements have been taken in order to establish cause of action.

 

3.1. By an agreement made under account number xxxxxxxxxxxx on or about 28 March 2003, Citifinancial Europe PLC ("the Original Creditor") agreed to issue a credit card to the Defendant for the purpose of acquiring goods and services on credit. The agreement was regulated by the Consumer Credit Act 1974.

 

3.2. The Defendant agreed inter alia to pay the original creditor each month at least the minimum amount due under the terms of the agreement. The Defendant thereafter made use of the credit card to acquire goods and services.

 

3.3. In breach of the agreement, the Defendant failed to make regular payment in accordance with the agreement.

 

3.4. By a notice of default and termination served on or before 8 May 2007, the Original Creditor required the Defendant to remedy his breach of the agreement by paying £,379.73 within the prescribed period and gave notice that, in default of so doing, further enforcement action might be taken.

 

3.5. On or about 10 May 2007, presumably in response to the said default notice, the Defendant sent a letter to the original Creditor. He enclosed a financial statement and stated that he was in financial difficulty and offered to increase his monthly payments to £10 percalendar month. This offer was not accepted by the original Creditor.

 

3.6. The Defendant failed to remedy the breach within the said prescribed period. As a result the Defendant became entitled to take enforcement action.

 

3.7. Further, by reason of his failure to remedy the said breach, the Defendant became liable to pay all of the sums outstanding on the account.

 

3.8. In or about June 2007 the Original Creditor assigned its rights under the agreement to the Claimant. By a notice in writing dated 11 June 2007, sent by post to the Defendant at the account address, the Original Creditor duly notified the Defendant of the assignment. The Defendant acknowledged receipt of the said notice in his letter to Ms Singh of the Original Creditor dated 18 June 2007.

 

3.9. The Claimant has made various written requests for payment of the sums due. In spite of these requests, the Defendant has failed, and refuses, to pay the sums due or any part thereof.

 

3.10. In the premises, the Claimant is therefore entitled to the sum of £6,727.12 plus statutory interest as pleaded.

 

4. For the avoidance of doubt, please note that, in response to a s.78 request in 2007, the Claimant supplied 2 sets of differing templated documents, both purporting to be reconstitutions of an original signed agreement. The Defendant was informed in a letter dated 19th July 2011 that the Claimant intends to rely on these documents in support of their claim. They have not clarified which of these differing documents is averred to be the true copy. (Copies of this documentation were supplied by the Claimant to the court as an exhibit dated 18th November 2011, marked “Exhibit CW2 To The Witness Statement of Colin Watts” for the hearing on the 30th November 2011.)

 

As to paragraphs 4 and 5 of the Defence:

4.1. The Claimant admits that the Defendant made a statutory request pursuant to section 78 of the Consumer Credit Act 1974.

4.2. The Claimant admits and avers that it responded to, and satisfied, that request by providing a true copy of the said agreement in accordance with regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and the subsequent guidance thereto provided by His Honour judge Waksman QC in the case of Carey -v-HSBC Bank [2009] EWHC 3417.

 

5. The Defendant pleads that the reconstructions relied upon are of no merit. The content of the two documents is generic and there is no evidence that either of them is a true representation of an original agreement that the Claimant claims the defendant entered into with the original creditor.

 

 

6. The Defendant therefore puts the Claimant to strict proof of the existence of the original document and the terms and conditions therein, and in evidence of this to disclose an original signed agreement relevant to this claim. Clearly, as the agreement in question predates April 2007 and being regulated by the Consumer Credit Act 1974, production of this document is required for enforcement by the court. It was established in Carey vs HSBC Bank PLC that supply of reconstructed copies is only appropriate to satisfy information requests under s78, not proof purpose of an executed agreement for enforcement by a court.

 

 

7. Notwithstanding the above points, the Defendant puts the Claimant to strict proof that any Default Notice sent to him was valid. Service of a Default Notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a valid Default Notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement.

 

 

7.1 The Defendant also notes that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment

Regulations the Consumer Credit (Enforcement, Default and Termination

Notices)(Amendment) Regulations 2004 (SI 2004/3237).

 

 

8. No Arrears Notices were ever issued by the Claimants to facilitate any interest charge and the Defendant contends that the Claimants should be aware that in these circumstances no interest is allowed as per section 86A-86D of the 1974 Act (sections 8-11 of the 2006 Act) and the Consumer Credit (Information Requirements and Duration of Licences and Charges) Regulations 2007 (regulations 19-26 and Schedule 3) retrospectively.

5. As to paragraph 8 of the Defence:

5.1. It is admitted that no notices of sums in arrear have been served by the original creditor or by the Claimant. It is denied, however, that either the original Creditor or the Claimant was obliged to serve any such notices. This is because the said agreement had been terminated before the date for the commencement of section 9 of the Consumer Credit Act 2006, namely 1 October 2008.

 

5.2. It is denied that the Claimant's entitlement to statutory interest is curtailed or extinguished by virtue of S11991/1184.

 

 

8.1 It is noted that the Claimant has included section 69 interest within the debt amount. It is averred that this has yet to decided by the court and at what rate and whether applicable to a debt covered by the CCA1974.

 

 

8.2 The Defendant contends that the Claimant should be aware they are not entitled to claim S69 interest by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

• 2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

8.3 The claimant has failed to particularise the amount claimed or state how much of the balance comprised unlawful charges and interest upon such charges.

 

 

9. In the above circumstances the facts and matters set out in the Particulars of Claim do not give rise to an entitlement to claim any of the relief now sought by the Claimant. The Claimant’s claim to be entitled to £8,898.97 including interest or to any other sum is denied.

 

 

9.1 The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit. The Defendant requests the Courts permission to amend this defence at such time the Claimant be compelled to comply and disclose, separately or at standard disclosure, the valid and necessary documentation to support their claim.

 

 

Statement of Truth

 

I XXXXX XXXXXX believe the above statement to be true and factual

 

Signed………………………………………………………………………..

 

Date Friday 27th January 2012

 

[/b]

Edited March 15, 2012 by newman

[DonkeyB]

Time to get very nasty with Mr T Watts.

[newman]

Wow utterly flabbergasted Newman, this is personal now, they don't believe you cant pay it and so now you will attend court to disclose your financial affairs. Committal offense if you don't attend!!!!

 

You are flabbergasted Andy - how do you think I feel? It's ridiculous it really is - I have stated categorically that I will make 6 payments on the 28th of each month and do they respond reasonably to this and say thanks very much, we look forward to receiving your payments? Absolutely not.

 

Talk about hypocritical - they refuse adamantly to respond to several CPR requests and even now at this stage are trying tro wriggle out of giving disclosure and yet they want to play heavy with me when I have politely declined their offer for me to submit my I&EW statement and have given them a commitment that the balance of the costs order will be paid albeit it not in one go.

 

I think you might be right about the N245 for the balance.

[newman]

Time to get very nasty with Mr T Watts.

 

Well Donkey I can't possibly comment on this on a public forum but any suggestions you have will be considered very seriosuly.

 

feel free to PM me if its easier.

[DonkeyB]

What I would suggest is probably illegal!

[newman]

What I would suggest is probably illegal!

 

Well lets not go there then eh!

 

And we suddenly have an audience - welcome guests - I trust its all very sunny today in Surrey

[Dotty50]

Sorry, I would have been a guest because I hadn't logged in as I am at work!

 

But having lunch now so I can!

[Andyorch]

Sorry, I would have been a guest because I hadn't logged in as I am at work!

 

But having lunch now so I can!

 

Your excused Dotty always welcome:-)

 

 

Andy

[Dotty50]

Thank you Andy, I'd better get back to work now!

[Loser4u]

You are flabbergasted Andy - how do you think I feel? It's ridiculous it really is - I have stated categorically that I will make 6 payments on the 28th of each month and do they respond reasonably to this and say thanks very much, we look forward to receiving your payments? Absolutely not.

 

Talk about hypocritical - they refuse adamantly to respond to several CPR requests and even now at this stage are trying tro wriggle out of giving disclosure and yet they want to play heavy with me when I have politely declined their offer for me to submit my I&EW statement and have given them a commitment that the balance of the costs order will be paid albeit it not in one go.

 

I think you might be right about the N245 for the balance.

 

If you were to do one would it leave you with a negative or minimal balance amount.

You need to follow the national debtline guidance, only including your income & making the correct provision for Food, Travel expenses, Emergencies, Christmas and Birthdays and all your dependants

Don't respond yes or no due to the guests but N245 could well be the best way to go

[the_shadow]

Wowzers, clear disregard for the facts... suspect theyre hoping to frighten you with the disclosure of finances and the listed estimated costs for the total trial.

 

S.

[Loser4u]

Disclosure of finances is all about deciding what action is in their best financial interest

[newman]

If you were to do one would it leave you with a negative or minimal balance amount.

You need to follow the national debtline guidance, only including your income & making the correct provision for Food, Travel expenses, Emergencies, Christmas and Birthdays and all your dependants

Don't respond yes or no due to the guests but N245 could well be the best way to go

 

Morning Loser4u

 

I wrote to the court and requested that they accept £50 a month which to this point in time I have had absolutely no response from the court at all - not even an acknowledgement that they have the letter. They do have it because I have called them to confirm but they cant give me an answer why they havent even sent a reply. Disgustimng.

 

That £50 was offered before a relative of ours very kindly came to our assistance and offered to help us with the whole of the costs order. We were then able to pay £500 to 1st Credit which took the balance under £750 which meant they could no longer proceed with the Stat demand and I then offered the remaining £744 in 6 equal instalments, which is why I declined their offer to send them a financial statement as it will make no difference whatsoever to how much they are going to get.

 

I would have thought that being offered over twice the amount they were originally offered would have been acceptable to them but it obviously isn't, so instead they have gone for a very aggressive heavy handed response.

 

I am not sure what they hope to gain out of this - a few quid more in costs probably.

[newman]

Wowzers, clear disregard for the facts... suspect theyre hoping to frighten you with the disclosure of finances and the listed estimated costs for the total trial.

 

S.

 

Hi shadow

 

Clear disregard for the facts - you hit the nail on the head there. I wouldnt have a problem with the disclosure of my finances if it had any relevancer at all to what they are going to receive from me but it doesnt as it is not us who are paying the costs order. That money is coming from a third party and so they have no need to see my financial statement.

 

I have told them this in plain English.

[newman]

Disclosure of finances is all about deciding what action is in their best financial interest

 

That may be so but any creditor can only have what any person is able to pay them. we are not paul daniels here and cannot pull money out of thin air!!

[Andyorch]

Lets see if the Court allows this application first Newman, after all its rather vexatious and personal and absolutely nothing to do with their claim.It should be denied.If not set a side.

 

Regards

 

Andy

Edited March 16, 2012 by Andyorch

[clairedcat]

small world newman, I too are from shotley bridge, I have just started going though your

 

thread as I am having similar trouble with lowell or "lowlife" as they are affectionatly referred

 

to here , my trouble isnt as advanced as yours 'yet'. Your post has been a life line to me,

 

although I wouldnt wish you or anyone to go through it, you and your replies have probably

 

helped so many people. Thanks again to you and CAG.

 

Claire x

[newman]

small world newman, I too are from shotley bridge, I have just started going though your

 

thread as I am having similar trouble with lowell or "lowlife" as they are affectionatly referred

 

to here , my trouble isnt as advanced as yours 'yet'. Your post has been a life line to me,

 

although I wouldnt wish you or anyone to go through it, you and your replies have probably

 

helped so many people. Thanks again to you and CAG.

 

Claire x

 

Hi Claire

 

Very small world indeed.

 

I will send you a PM

[Loser4u]

Morning Loser4u

 

I wrote to the court and requested that they accept £50 a month which to this point in time I have had absolutely no response from the court at all - not even an acknowledgement that they have the letter. They do have it because I have called them to confirm but they cant give me an answer why they havent even sent a reply. Disgustimng.

[/Quote]

 

Did you use the correct form to submit your offer with such as the N245 without that and the correct fee I don't think the court will even look at it let alone reply.

 

I would have thought that being offered over twice the amount they were originally offered would have been acceptable to them but it obviously isn't, so instead they have gone for a very aggressive heavy handed response.

 

With 1st crud it makes no difference.

I had a regular agreed payment set up with OC when they aquired the debt and continued to make these payments. They ignored this and still went down the Stat Demand route.

So they ended up with nothing as they had no agreement and an invalid default notice.

 

If you haven't have you made a Data Subject Access Request to the Original Creditor with the £10 fee.