Pheonix [luxembourg] through brian carter issued claim form, poss sb'ed too - any advice please?

[berniebobs]

Hi Guys

 

Its been a while since ive been on here and thought Id come to the wrong place!!

 

Ive had a claim form today from Northampton for Pheonix,

 

I think its for a catalogue and is or is almost statute barred.

 

I last acknowledge it in 2004 - 2005,

 

me thinks thats why they've gone for the Claim.

 

Its for £600 - wow!

 

Any advice on it?

 

is it too late to ask for proof of this debt.

 

Should I just take it on the chin as yet another poss CCJ to my name?

 

Your help is appreciated!

[Tingy]

Would be worth investigating the SB bit.

[berniebobs]

Thanks for your very quick response, its very much appreciated.

 

Yes the Claim form has been awarded against me Tingy.

 

im not sure if its statute barred or not? I know it was around 2004/2005 i stopped acknowledging it but im really not sure if its now SB or if theyve slammed in the Claim form cos its on the tip of being SB. I have not had the original claim, all its been is numerous threats from different debt collectors selling on this debt, then phoenix have done this.

 

Any advice on finding out if it is SB or do I just take it on the chin and add it to the rest of the debts?

[Tingy]

The obvious way I can think of is to look at your credit file free online!

Edited November 23, 2010 by Tingy

[Jasper1965]

the tip of being SB. I have not had the original claim, all its been is numerous threats from different debt collectors selling on this debt, then phoenix have done this.

 

 

Sounds like the Phoenix/Brian Carter MO to me.

Edited November 23, 2010 by Jasper1965

[DonkeyB]

Spot on Jasper, this is Carter’s oldest trick.

[Jasper1965]

so I now call the court and ask for a copy of the claim form? thats not the CCJ form ive recieved today? thanks again!

 

Can you clarify whether the form you received is a claim form or a judgment form please?

[berniebobs]

no not had an N1..

 

Jasper, its a claim form

 

Thanks again!

[Jasper1965]

Does it say something like "The claim is for goods sold to the defendant by the claimant between 1/1/2004 and 1/1/2008"?

 

If you could post up the "Particulars of Claim" I'm sure you'll get the neccesary help to see these jokers off.

 

Phoenix are a Luxembourg based company who use "rent a Solicitors" to give the impression that they are a UK company.

IMO it's an abject abuse of the County Court system to infer that a company is UK based and attempt litigation as such, there's a different cross border claims system in place for all EU countries which should be used when attempting to claim in a different jurisdiction.

Everything about this Phoenix is shady but the good news is they don't seem to like resistance so you should be able to see this claim off.

[DonkeyB]

An N1 IS a claim form!

[berniebobs]

Hi Jasper

 

it says: The claimants claim is for the price of goods sold & delivered by the claimant between, 1.10.04 and 30.09.09 (which is amazing as I havent had any contact with them since 04/05) total £608.28. Its is Bryan Carter.

 

any suggestions on what to do please.

 

Sorry Donkey1, I AM thick when it comes to official forms

 

Thanks Magician, any advice on what to do next?

 

Once again thanks to you all, your help and guidance in appreciated x

[Jasper1965]

You don't need to apply for a set aside as this is the claim form and no CCJ has yet been awarded.

 

You do need to acknowledge service ~ you can do this online

You do need to defend this claim.

 

The claimant is Phoenix.

Did Phoenix ever sell and deliver goods to you?

 

As a Luxembourg based company the correct route would have been for Phoenix to submit their claim against you by way of a "ESCP" (European small claims procedure), to attempt to slip yet another one in the back door by using Carters to pretend this FOREIGN claim is suitable for the English County Court system is quite likely an abuse of Court procedure and should be highlighted in any defence submitted.

There is a correct form and a correct procedure to follow for constituents of EC member states to submit cross jurisdiction claims, the limit is 2000 Eurodollars so this claim should have been through the Escp and NOT the english and welsh cc system.

 

You will shortly be writing to BC asking them for information pertinent to their claim, none of which they will have.

 

They will probably discontinue sometime before it reaches Court the minute they know you're not going to be yet another "DEFAULT JUDGMENT" in the BC book of succesful claims.

[themagician]

as this is believed now to be a claims form ! as you DO NOT have a ccj for this acc set aside action is futile!

i would send carter the cpr letter " before action"requesting all that he relies on for his court case including cca/dn's/and any other docs he should have legaly sent you for this acc.

[themagician]

if you have not got a ccj and all they sent you is a n1 form a set a side is not the answer.

you will need to reply back to the court stating that you will be defending the action.

then you would need to cpr carter to see what he is basing his claim on.

cpr letter pm'd to you!.

Dear Sir,

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

On (date) I received the Claim Form in this case issued by you out of the (Name) county court .

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored] [delete if no such request was delivered]

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 The assignment*

3 The default notice*

4 The termination notice*

5 [any other documents mentioned in the Particulars of Claim]*

* delete if not mentioned in the Particulars of claim.

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

# delete if claim for a sum exceeding £5,000.00

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

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

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

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

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

Yours faithfully

[berniebobs]

IM now confused.com:???:.

 

Could please advise, .. i need to acknowledge service online?

 

I send the letter above to Carter, NOT the original creditor?

 

Sorry Im just mixed up

[themagician]

thread started off confusing,you got a ccj! you aint got a ccj ?.

send cpr request to carter!

acknowledge service on line.

[berniebobs]

thanks magician

[Jasper1965]

 

Sorry TM but I don't think the CPR template letter is appropriate here for the reasons outlined below.

 

1 The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

No agreement is mentioned in the POC's.

2 The assignment*

 

No assignment is mentioned or required (at face value) because the POC's state that the claimant sold and delivered goods (themselves).

3 The default notice*

 

Not mentioned or possibly even required as the claim is for goods sold and delivered not a credit agreement regulated by the CCA 1974.

4 The termination notice*

See note 3 above.

5 [any other documents mentioned in the Particulars of Claim] None mentioned.

 

 

I suggest the following course of action:

 

A new and more specific CPR letter be sent to BC (can be templated for all the other BC/Phoenix sold and delivered claims out there.

A holding defence be submitted to the Court as having a defence lodged changes legalities and liabilities for BC in the likely event they discontinue. costs etc.

A letter be drafted for the MOJ complaining about and illustrating the abject contempt shown the County Court system by this company who are trying to push an american funded luxembourg based companies business through the UK small claims courts, tax writedowns assignments there are many implications to this cross jurisdiction accounting and litigation [problem]. Same letter to be forwarded to OFT, HMRC and SRA.

 

 

Suggest holding defence be along lines of:

 

1) It is denied that the defendant has at any time purchased and/or received goods from the claimant and the claimant is put to strict proof of all purchases and deliveries averred within their POC's.

2) The defendant is embarrassed by the lack of information supplied with this claim which has come from a company with whom the defendant has never conducted any type of business transaction either privately or commercially. The defendant has written to the claimant asking for further information namely the following:

The dates of the alleged purchases.

the dates of the alleged deliveries.

Accounting documentation to substantiate the amount claimed as owed.

Contractual proof that these goods were ever ordered by the defendant from the claimant.

Proof that these goods were ever delivered by the claimant to the defendant.

 

Until such time as the claimant supplies the defendant with some form of explanation as to why they have brought this claim the defendant is unable to either admit or deny anything save that which he has already denied within this defence. for this reason the claimant respectfully requests that the Court accept this document as a holding defence until such time as the claimant explains their claim and can satisfy the Court that there is a bona fide case to answer for non payment of goods supplied and delivered to the defendant as alleged and that at this time the Court might make an order to the defendant to serve a full defence to this claim within a reasonable period in response to the disclosure made by the claimant.

 

3) It is averred that the claimant is a Luxembourg based company (an SARL) with no legal entity in the UK and as such this claim is made "out of jurisdiction", any such cross EC member state claim of this type and amount should be made using the European small claims procedure.

4) It is requested that the Court exercises its powers under CPR 3.4(2)(b)to strike out this claim for the reasons set out in part 3 of this holding defence.

[themagician]

re:The defendant has written to the claimant asking for further information namely the following:

The dates of the alleged purchases.

the dates of the alleged deliveries.

Accounting documentation to substantiate the amount claimed as owed.

Contractual proof that these goods were ever ordered by the defendant from the claimant.

Proof that these goods were ever delivered by the claimant to the defendant.

 

so we can assume that the defendant will be able to produce copies incl postage of this letter.

also i,ve never heard of a case being thrown out on.

 

A letter be drafted for the MOJ complaining about and illustrating the abject contempt shown the county court system by this company who are trying to push an american funded luxembourg based companies business through the UK small claims courts, tax writedowns assignments there are many implications to this cross jurisdiction accounting and litigation [problem]. Same letter to be forwarded to OFT, HMRC and SRA.

[berniebobs]

Thanks for all your replys. Im sorry but sometimes im not keeping up with some of the abbreviations.

 

Im now preparing the letter as posted by the Magician on 26th Nov to be posted tomorrow to BC, is this right?

 

Im going to acknowledge the claim in the morning, is that right?

 

Then what do I do?

 

Sorry im being a but blunt here, but i dont want to make a ash of it, when ur all being so helpful.

 

Thanks, Bernie x

[berniebobs]

also do i enclose a £10 postal order with the letter above? thanks

[Jasper1965]

 

Sorry im being a but blunt here, but i dont want to make a ash of it, when ur all being so helpful.

 

Thanks, Bernie x

 

Sorry but that letter is hugely irrelevant to your circumstances and IMO a waste of time.

 

Stick to the "Particulars of Claim" for your defence and defend on those POC's only.

 

The claimant claims to have supplied and delivered you goods.

 

Then make the claimant prove it!!!!!

 

Don't turn this into a CCA 1974 defence when no claim has been made under that act, don't introduce anything just ask the claimant to prove that they are telling the truth in the POC's because if they're not by any chance you'll nail their collective hides.

 

The claimant did not sell you any goods.

The claimant did not deliver you any goods.

The claimant does not and never has even run retail facilities where you could purchase goods.

 

You need to take these facts in, accept that they are correct and deal with the claim according to the PARTICULARS OF THE CLAIM.

 

Because that's all a Judge will do if it goes that far.

 

Don't think I can be much more help here as there's very conflicting advice coming in from two people you don't know, think about it logically and get as much advice as possible before making any move, acknowledgment gives you more time in which to file your defence.

 

Good luck!!

 

Jasper

[berniebobs]

Thanks Jasper and also for the PM.

 

Would I need to send a letter the phoenix/BC? if so, does anyone have a template or could show me how to lay it out?

I understand where youre coming from Jasper, it does make sense.

[dx100uk]

thread moved renamed an tidied out stuff relating to advice on CCJ.

 

proving the SB is the route to go.

 

can we also please keep things on thread and visable so's others may use this thread for assistance in the future

 

PM'ing helps no-one and is selfish .

 

dx

[berniebobs]

ok thanks dx