Phoenix court claim for 20year old debt! *** Discontinued ***

[critical_mas]

Hi all

 

Hope someone can help with this one.

 

Some 20+ years ago I had a 'flexi' loan from the Midland bank, times got hard (we got married/kids) and if memory serves we were in default for about £1800. Being on a low income we agreed to pay £5 or £10 a month to reduce the debt and this went on for some 4 or 5 years, midway the debt was sold or moved to MCS (Midland collection services) with us paying between £5 - £20 per month for another 5 or 6 years. There was then a break of 5 or 6 years after we cancelled the Direct Debit when we forgot what it was for!

 

Then along came Rockwell about 5 years ago with a HSBC reference number and I made the link with the Midland loan. We started paying them £15 per month and ended @ about £25 per month 2 years later.

They sent the normal 'review' stuff and I queried what was actually left to pay, they said ....£1600 !!!

 

After reviewing posts on here and other advice it became obvious that they would have had us paying infinitum. They did send statements once we refused to pay anymore without any evidence of the debt but they simply stated what we had paid in the previous year and a ballance of £1600 remaining.

 

Long story short; they broke all the laws and regulations on debt collection, we told them to show us some evidence of the debt other than a list of what has been paid. Obviously they couldn't.

 

A few months back the phone calls started again and we told them to only contact us by mail. We again requested evidence of the debt.

 

Lo and behold today my wife and I each get a court calim issued in Southend CC for £1769 after costs. The POC Simply states against me for £1769 due under the following account :-XXXXXXX/XXXX

 

I Believe We need to return Aos (recorded delivery) and show our intention to defend the claim.

 

Then i'm not sure what..?

 

Thanks in advance for any help

[debbbbsy]

we told them to show us some evidence of the debt other than a list of what has been paid. Obviously they couldn't.

 

As they have instigated legal proceedings, you need to send a CPR 31.14 request, to demand all the documents they will rely upon to enforce the claim. They have 7 days to respond. If you have only just recieved the court docs, do the CPR ASAP. Then after 7 days, depending on there response submit your defence.

The Statements from when the account was opened.

(If they have been adding interest, the 2006 CCA amendments states that statements MUST be provided).

The Agreement with the Original Creditor.

The Default Notice.

The Notice of Assignment (which you should have recieved) and the Deed of Assignment (they must have from the previous DCA/original creditor). Without these they don't 'Own' the account, and have no legal entitlement to instgate legal proceedings.

 

I would also attach a very strong letter of your intention to defend in full.Tell them to 'Discontinue' the claim if they cannot produce the documents you have requested. Point out that they will be liable for all court costs, and you will make an application for costs when they lose.

 

There was then a break of 5 or 6 years

It could be, that when Rockwell demanded money the account was Statute Barred. If it was, threaten a counterclaim against them for all the money you have paid.

 

I'm not fully sure of all the court procedures, but I think you can acknowledge the claim, and then you have more time to submit your defence.

 

Just shout, more help will come.

 

Debs

[PGH7447]

subbing

[critical_mas]

Thanks Debbbbsy

 

I was a little concerned that all they state in the POC is an old account number (from Midland bank) and a figure.

 

Does this stop me doing a CPR 31.14 request for original paperwork when no reference is made to these in the POC

 

Do i simply request 'all original documents' upon which the claim will be based???

 

Sorry peeps it doesn't take much to confuse my single brain cell

[debbbbsy]

Does this stop me doing a CPR 31.14 request for original paperwork when no reference is made to these in the POC. Do i simply request 'all original documents' upon which the claim will be based???

 

Even though they don't refer to the agreement & the documents in the POC ( Which is odd ). All the documents I have referred to, are a legal requirement to instigate legal proceedings and then enforce the claim.

To bring a claim, the OC and the DCA must follow the correct procedures and have in there possession documents to enforce the claim. Any breach of these protocols, can be challenged. Unfotunately, many plaintiffs don't know there rights & get bullied into admitting a claim.

 

You have the account number. Demand all documents they have referring to this account.

 

Debs

[debbbbsy]

Do i simply request 'all original documents' upon which the claim will be based???

 

No, you must be specific.

 

The reason for this is , they will wriggle...

 

Also, if the claims are seperate,( joint & several), all correspondence to phoenix must be seperate.

 

This is what will probably happen, they will struggle to get the agreement, do they even know who the OC is, and such an old account, the OC will have closed the account anyway.

Such a prolonged period of time.....they'll struggle to respond in 7 days. But, what you need to understand, they shouldn't have instigated these proceedings without these documents, it is a blatant breach of the CCA 1974. Infact, when they issued the claim, the agreement for this account should have been provided.....but they don't....the courts allow this breach....until the plaintiff challenges this.

 

So what happens next....

 

You do the CPR . They fail to comply.

You file an "Embarassed Defence", and copy the courts on your CPR & inform them that the claimant has failed to comply.

 

The ball is in there court. Despite your defence, and the fact they have nothing.....they proceed.

The Claim is transferred to your local court.

You'll both recieve An Allocation Questionaire. At this stage, you submit a "Draft order Direction". what this is, all the documents you requested in your CPR, that you didn't get, you now ask the judge to request them from the claimant. He'll give them 21 days.

I would also recommend writing to the claimant as many times as possible, giving them the opportunity to discontinue, explaining why the claim is unfounded. Send every letter recorded. Make them fully aware that they will be liable not only for the court costs, but you will apply for a costs order against them.

 

The only way to deal with these people is to be strong and 'in there face'.

 

Debs

[critical_mas]

Ok thanks, I think I understand now.

 

You mentioned separate replies, is this still advised if we have a single case number, my name only in the POC but both my wife and i received a copy of the claim and are shown as defendants.

 

Mas

[postggj]

please type out what is stated in the poc word for word

[debbbbsy]

You mentioned separate replies, is this still advised if we have a single case number, my name only in the POC but both my wife and i received a copy of the claim and are shown as defendants.

 

I don't really understand this.

 

The claim has only been issued against you.... was this a joint loan ?

[critical_mas]

To be honest I'm not sure if the original account was in joint names....it was a long time ago.

 

What I do know is that my wife has always received the same letters, calls and threats from phoenix and Rockwell.

[debbbbsy]

I find this really confusing .

 

If a couple take out a loan together, they both sign the agreement. if the account goes into default, both parties are equally responsible for the whole amount owing, this is known as a "Joint & Several" debt. Lets say the amount owed is £1000, they issue proceedings against both parties for £1000. But the claims should be seperate, the same debt, but different case numbers, and the paperwork should state that it is "Joint & Several". Payments from both parties will go towards reducing the 1 account.

 

Now, just because you are married, does not make your wife liable.

 

You must both do seperate CPR requests

 

(we got married/kids)

 

If this loan was taken out before you married. When they contacted her, and ask her to confirm who she is for security reasons.....Do they refer to her in her maiden name ? If they don't know her maiden name, then they don't have an agreement or any original documents with her name on.

[critical_mas]

POC says

The Claimants claim against the defendant Mr (Critical_mas) the sum of 1,769 due under the following account:- xxxx/xxxxx 1,769

 

It is the same on both copies of the claim....

Does this mean that my wife's paperwork will need take a different route since they are claiming my alleged debt from her?

[postggj]

what a crap poc

 

ill deal with this tomorow

[debbbbsy]

Does this mean that my wife's paperwork will need take a different route since they are claiming my alleged debt from her?

 

It could be, because I assume the payments were coming from a joint account, they have assumed your wife is also liable. What it does reveal, if it was only you who took out the loan, they have no documents relating to this account. Only an account number and Mr & Mrs critical-mas paying towards it.

 

They CANNOT claim money from your wife, being married does not make her legally responsible for debts in your name.

 

Can you check, the POC are the same, are the Claim Numbers (top right box, in bold on the claim form) the same.

 

She needs to make all requests seperately. But will follow the same route in order to defend this claim.

 

Debs

 

Debs

[critical_mas]

Hi All

 

 

Received a 'polite' letter today from Phoenix' solicitors thanking me for my correspondence (CPR 31.14 requests and a letter suggesting they detail the POC properly or withdraw the claim. Sent recorded delivery 8-12-2010)

 

They tell me the debt is from a joint account with my wife and "....enclosed a payment print showing all funds received to date" along with a copy of a financial statement I provided in 2008.

 

They go on to ask for payment proposals or an offer of full and final settlement within seven days.

The final paragraph says "Copy documents have been requested and will be forwarded to you upon receipt although we are in the hands of the vendor as to when the same will be received."

 

A couple things come to mind now.

 

1. This was definitely not a joint account but payments for this debt in the past had been made from a joint account hence there assumption it seems.

2. When Phoenix originally took over the debt it was definitely statute barred.

3. The financial statement was given by me in less enlightened times when I never thought to question the status or the outstanding amount; I have never disputed the original debt.

4. I have no way of knowing how many charges have been added to this debt over the years.

5. Am I correct in believing that they should have had all the missing documents before commencing legal action?

 

I have already returned my AOS to the court and indicated my intention to defend all. What is the recommended course of action now, considering that they have made only one court claim naming two defendants but only me in the POC?

 

Just noticed on the letter from the solicitors ELS & Cole, they have the email address els cole at fentoncooper dot com and the address is 5th Floor Maitland house same as all the others! That must really be a fun building to work in!!!

 

 

By the way Christmas is nearly here..............

[the_shadow]

Personally I would (as you have got in writing the fact they are requesting documentation to prove the debt) phone the solicitors and ask for agreement to an extension for filing a defence, if they say no then threaten them with an application to the court for the extension and state you will use there letter against them as they clearly do not have the proper documentation to bring a claim also advise them you will be claiming costs off of them as they are not being reasonable.

 

Whatever they agree to on the phone YOU MUST DEMAND they send in a letter or email, once you have this confirmation YOU MUST let the court know that you have come to an arrangement for an extension or they could still apply for judgement (Its your responsibility to advise court).

 

Just my opinion tho.

 

S.

[the_shadow]

Oh and you SERIOUSLY need to look back into your account history to see if there was a full 6 year period of none payment/contact in writing from yoursleves TO HSBC/Midland.

 

Starting repayments up after the 6 year period DO NOT reset the timescales, Its worth investing time to do this even this time of year as the debt could be stat barred and nothing could be owed (LEGALLY anyway)

 

s.

[critical_mas]

Thanks for the above shadow.

I have just spoken to the solicitors and they are not prepared to agree to an extension despite agreeing that the paperwork is required for a defence.

They are of the opinion that the debt is only three years old and asked me how do I know it was twenty years old..... I told them it was my current account at the time!

I was under the impression that acknowledging/paying an old debt even if it was statute barred restarted the clock????

Any help on where to go from here would be much appreciated

[DonkeyB]

If there was a clear gap of six years at any time with no acknowledgment or payment, then it can never become un-SB, as mentioned above.

 

What shadow is saying is that you need to check your own accounts and payments to see if there was a clear six year gap before you started making those more recent payments.

 

If there is a six year gap, the your defence is total.

[the_shadow]

Thanks for the above shadow.

I have just spoken to the solicitors and they are not prepared to agree to an extension despite agreeing that the paperwork is required for a defence.

They are of the opinion that the debt is only three years old and asked me how do I know it was twenty years old..... I told them it was my current account at the time!

I was under the impression that acknowledging/paying an old debt even if it was statute barred restarted the clock????

Any help on where to go from here would be much appreciated

 

Ok, if you are certain that the account is stat barred... you will I feel having made payments after the stat barred period probably have to show a full 6 years of non-payment which I'm not how can be evidenced tbh? any thoughts peeps?

 

As to them not agreeing to the extension, I would personally ring them again, tell them that unless they agree an application for extension of time will go into court and you will be seeking the costs from them of this application.

 

S.

[DonkeyB]

I agree with Shadow.

 

The payment records for this account are essential to your defence. Time for an N244 and a court order to produce the documents you need. Rockwell usually run a mile when one of these lands. They have refused to supply the details under CPR, and have refused an extension – that is unreasonable, as they have brought the claim unprepared.

[bazaar]

They are being unreasonable, they either have the statements or they dont. If theyve stated they believe the account is due from 3 years ago, then prove it by supplying the documentation.

IMHO, I would be stressing the point that the cpr request is still unanswered and you would rather have the documents to hand so that there is no need to waste court time, AS advised, get an order in to court pronto and put them on the back foot.

A carefully worded application will hopefully get the judge on your side.

 

IE, include something like, 'to clarify the statute barred status you require the statements.' You have reason to believe it is statute barred because you have no knowledge of payment history from this alleged account.

[critical_mas]

I have no way of proving no contact for 6 years.

 

Excuse my ignorance but I thought the n244 was to request an extention?

I'm not sure what to do to get an order in court to force them to come up with the paperwork.

[the_shadow]

I have no way of proving no contact for 6 years.

 

Pls read back, this is NOT what you are being advised to do... because you paid after a hopefully stat barred period (although your first post does leave it a bit wooly (5 or 6 years) unless you live in Scotland of course) you may need to show that no payments were made. If you know the full dates of when the last acknowledgement was made and the full date of when it became stat barred then advise them of this and let them prove otherwise.

 

Excuse my ignorance but I thought the n244 was to request an extention?

I'm not sure what to do to get an order in court to force them to come up with the paperwork.

 

an N244 application can be anything that you are asking the court to do... in this case I would personally advise you threaten them again and warning them that costs will be sought from them if they dont agree, shows you are being more than reasonable. The application would be for an extension to the time to file a defence and as evidence you would need to show the letter you have sent to the opposing solicitor and proof of delivery and details of any phone calls names/times/roughly what was said etc.

 

You could instead...as suggested make an application to the court, also on an N244 form for disclosure of a document in accordance with the CPR 31.14 request previously sent to the claimant.

 

HTH

 

S.

[critical_mas]

Hi all, sorry for the delay in updating the thread.

Phoenix discontinued the claim once they seen a copy of my defence.

I simply stated the truth; in that I recal the existence of the account but to the best of my recollection no monies should still be outstanding and if there is a debt then proof of the same needs to be provided as previously requested.

 

The discontinuance notice came from rockwells solicitors so I checked the status of the case with the court and all seems well.

 

Thanks to everyone who took the time to post replies with help.

Maybe not a victory in the true sense this time round but a good result nevertheless.