County Court Claim Out of the Blue - ish. Phoenix Tessera.

[wouldlikehelpplease!]

Hello! Please don't get bored reading!

 

I was hoping that someone would be able to offer me some advise.

 

In the past I ran into great difficulty with HSBC, and was paying them back money I owed them through a debt collection agency. I am ex-Army and moved around a lot and lost contact with them. I thought the payment of £5pcm was still being taken actually.

 

In November I received a letter from Pace Forward asking me to contact them - I didn't as there was no explanation as to what this was about.

 

I have now received a County Court Claim form that states it is connection with - and gives account numbers. I don't know if these are the ones but the sum seems about right. I was in hospital and then on sick -leave and my world spun largely out control and most of this debt is fees and penalties.

 

So I think that this is what it's for. It is 2700 or thereabouts. My father left me a little bit of money and that would cover it. I realise that the debt is mine if that's what it is and that I should therefore pay it. Although I'm pretty sad about the solicitors and courts fees. I was in a bad way and feel like I was eaten alive a bit by the banks.

 

Can anyone suggest what my best bet is? Would the solicitor settle before hand? Could I possibly negotiate him down? Is it a really bad idea to phone the solicitor up for a chat?

 

I'm a bit upset that they have done this without any discussion with me other than that letter which asked me to call pace forward without saying why. We could probably have resolved this already.

 

I have worked very hard to get my life back on track, and build up a bit of a credit improvement so this is a bit of a setback. I wonder if they wont negotiate or settle that I should put the case to the court that they haven't talked to me or helped me to pay them and ask them to reject it on that basis but I really don't want the stress and really don't want a CCJ.

 

Any help gratefully received! Thank you for reading my essay!

[GALLIVER2516]

Hello you need to ask the DCA proof that they have the right to persue you for this debt by sending them a CCA request-thats if its a CC / Loan, there is lots of advice on this site have a good read and it will help you understand.

 

Template letters for these requests are on here too

 

You will need to acknowledge service of the court forms

[wouldlikehelpplease!]

Thanks. How do I do that without launching a defence or accepting it? I only have 14-28 days.

[dx100uk]

its on the claim form how to ack it online

 

read a few threads in this forum for help too

 

dx

[rebel11]

Hi would

 

Could the debt be Statued Barred?, how old is the debt? Is it older then 6 years?

[wouldlikehelpplease!]

Hi,

 

Thanks for replies. I'm not sure I have time for CCA's etc, as I only have 14 days - although if I say I wish to defend that I can extend to 28.

 

The original default was 2003/4, but I paid money towards it to a different debt collection agency since then - probably about 2-3 years ago.

 

I think I'll phone their solicitor, ask for proof that they have authority to collect the debt and that it is not statue barred and then try to negotiate with him.

[wouldlikehelpplease!]

Spoken to them and agreed a payment - which they have emailed me saying will be taken in full and final payment. I asked for proof that they are entitled to collect this though and all they have sent is a template letter not saying much. I've now emailed them back asking for a PDF of the signed credit agreement and a deed of assignment. The offer from them is time limited though and I don't know what to do now.

 

If I acknowledge the court forms it says I have to file a defence in 28 days. Is not having proof a defence? If I resend my request recorded delivery can I use this as a defence or to get a delay?

[Jasper1965]

Please don't rush into making any agreements with DCA's, especially on the phone.

 

You've plenty time to deal with this but it's important that you acknowledge the claim which you can do online.

 

The fact that they were prepared to settle tells me that there's probably something very wrong here.

 

We'll need more info to proceed, some of which you will have, some of which you wont, and probably neither will the claimant.

[Jasper1965]

You say that most of this alleged debt is fees and penalties.

Can you tell us what type of debt it is please? A credit card or bank account, loan etc.

 

We also need to see the "particulars of claim", if you can scan this and post it up this helps, if not could you type it out please?

 

The POC's will be something like "The claimant claims £xxx in respect of account number 1234" if you're not sure.

 

You are entitled to any document mentioned in the POC ergo if it mentions an agreement you are entitled to see that so you'll be making a CPR (civil procedure rules) request for more info from the claimant, the claim will not go ahead until this is dealt with to the satisfaction of the court.

 

You are entitled to proof that the debt exists and the claimant has the legal right to claim it.

If an account has been terminated you have the right to examine the circumstances of the termination to ensure "default notices" were issued and compliant.

There's much more you can do or more importantly force the claimant to do.

Don't telephone the claimant they will tell you anything today and then deny it tomorrow.

keep everything in writing from hereon.

 

Fees and charges and interest thereupon from around the period of the account are sometimes reclaimable (credit card charges certainly are), also any unwanted insurance products PPI (payment protection insurance) can be reclaimed often drastically reducing any total claimed.

You need to Subject Access Request the original creditor to see what information they've got especially if you think there are charges on the account.

 

There's a long way to go and you'll get help here.

 

don't forget that you can dispute any or all of the claim and even if the judge finds against you so long as any judgment is paid within 28 days of the judgment then NO CCJ WILL BE RECORDED AGAINST YOU.

Keep that money safe for now, don't give it to a DCA for christmas.

[wouldlikehelpplease!]

Hi! Thanks very much for the help and the encouragement.

 

It was a current account that got badly overdrawn, and some credit card stuff put into a managed loan that I then defaulted on.

 

The POC:

 

The claimants claim against the defendant Mr. WLHP the sum of £2800.00 due under the following account:- XXXXXX/XXXXXXXX £2800.00

 

Which is the old current account number. Although actually it probably should say something else, as this was taken into the managed loan which is a different number but under the same sort code. I wonder if that is grounds for defence on it's own? I have 2 statements from the bank in question one showing the loan under the different number (at 4k - I paid alot to another DCA), but the number they have given on the POC is shown as being closed in September 2005 with a balance of 0.00.

 

When I phoned up initially the solicitor was quite firm that they didn't want to negotiate with me and that their client wanted a charging order and that was that. I used the little knowledge I gained from searching around to say that the court would be looking for us to be trying to work this out and that they wouldn't give them a charging order as I am offering to pay if they can prove they are entitled to collect the money. They then said if I paid them £2000 now that would be it, so I said I would if they'd provide proof.

 

They sent me an email confirming the above, and attached a letter (it was exactly this - with the fields unfilled - all I've removed was the dates):

 

 

 

 

 

 

 

 

«StandardField03» «StandardField04» «StandardField05»

«StandardField07»

«StandardField08»

 

 

XX September 2008

 

 

«StandardField06»,

 

Reference: «Field06», Account No. «StandardField02»

 

I am writing to inform you that the above account has been assigned to Phoenix Recoveries (UK) Limited S.a.r.l. (“PRUK”) acting in the name and on behalf of its compartment Tessera Recoveries on «Field09».

 

This means the effective owners of the above account are now PRUK.

 

PRUK have now appointed Rockwell Collection Agency as their servicing agent to manage your account on their behalf. All contact regarding this account should now be directed to:

 

Rockwell Collection Agency

PO Box 66

Southend-on-Sea

Essex

SS1 2GX

08706 060807

 

I can confirm that the amount outstanding on your account, as at «Field10» was £«StandardField10» and that all payments since «Field10» will be forwarded to Tessera Recoveries shortly.

 

Yours sincerely

 

 

 

Gary Jones

 

ROCKWELL DEBT COLLECTION AGENCY

PO Box 66, Southend-on-Sea, Essex SS1 2GX

Pre-Legal Department: 08706 060807

8am to 8pm, Monday - Friday

9am to 1pm Saturdays

 

«StandardField03» «StandardField04» «StandardField05»

«StandardField07»

«StandardField08»

 

XX September 2008

 

Our Reference: «StandardField01»/NA0D-018A *«DocID»*

 

«StandardField06»,

Re: Your account «StandardField02»

We give you notice that we have been instructed by Phoenix Recoveries (UK) Limited S.a.r.l. acting in the name and on behalf of its compartment "Tessera Recoveries" as assignee of HSBC Bank Plc (“HSBC”) and all of HSBC's rights in, to and under the above detailed account. We will be administering the account.

As a result of this assignment the full amount outstanding on the account is now due, and all future payments must be made direct to us at the above address. You should not make any further payments to HSBC in respect of the account as it will take longer to process the payment and credit it to your account.

You should contact this office immediately so that we can agree payment terms with you.

Under the terms of this assignment, and as defined in the Data Protection Act 1998, we are now the Data Controller of your personal data contained in the records of this account.

We have the same rights as did HSBC to give information to credit referencing agencies about the personal debt that you owe in respect of this account.

We will comply with any request for a copy of the Personal Information that is held about you in our records.

Please do not ignore this letter. We look forward to hearing from you.

Yours faithfully,

 

 

 

ROCKWELL COLLECTION AGENCY

 

I have 7 days to get it at the £2k price! I am quite worried that by delaying I'll end up going to court and it'll cost me £1000 more than if I give it up now. But what I dont want is to do that and then have another company hunting me later who are actually really entitled to collect it. I'm also worried that I've provided enough information on here for them to identify me.

 

If only they had contacted me properly in the first place.

[Jasper1965]

So it's a combined current account and credit card account consolidation loan is it?

 

Did you sign paperwork for this consolidating loan or did the bank help you out by doing it all for you?

 

Strictly speaking if they claim for monies owed under an account and that account can prove to be zero balance that should be the end of it but these people make up the rules as they go along.

 

What they should be pleading is that monies are owed under the consolidating account not the bank or cc account as these will have been reduced to a zero balance upon entering the loan agreement. You could theoretically have paid off the two earlier accounts by taking a loan with Barclays then if you hadn't paid that loan, HSBC would have had no claim on either account (being satisfied). It's simple when two different banks are involved but tricky when it's all kept in house.

You would need to obtain a copy of the t&c's of the loan account to see what remedies were available to the bank in the event you defaulted.

I suspect that upon entering that third agreement the balance of the two previous accounts were consolidated.

I further suspect that the loan agreement is wholly unenforceable because:

There never was a signed agreement for the loan or if there was then it will not stand scrutiny.

 

The whole Tessera, Phoenix, rockwell pace Forward etc. etc. set up is excruciatingly complicated and obviously designed to be as difficult to penetrate as possible.

Tessera group PLC operate a debt collection service, Phoenix UK ltd SARL are actually a Luxembourg based US financed debt speculator. SARL is approx equal to a UK ltd company you would be forgiven for thinking this was a UK company.

 

You definitely are going to need to force the claimants hand here and get disclosure from them on a number of matters. It would be in your favour to subject access request the OC as soon as possible too.

 

Key points in no particular order so far are:

 

Account was closed with zero balance by virtue of any outstanding balance being paid from a consolidation loan.

The claimant did not issue you with a notice of assignment prior to commencing litigation notwithstanding the compliance of any assignment claimed. Failure to issue such a notice prior to commencement of proceedings can be fatal to any claim there's case law somewhere out there on this [Cia Colombiana de Seguros v Pacific Steam Navigation Co [1965]]

ref the final statement you mention:- how is the final credit to the account ie the one which reduced the balance to £0 described?

(Looking at the claimant it's highly unlikely that any assignments would be perfected anyway).

Without an absolute assignment in place the right to action has not transferred from HSBC to Phoenix, tessera or whoever really is the claimant.

The loan was presumably a regulated agreement, was any default notice issued prior to termination and if so was it compliant?

Claimant failed to comply with CPR and pre action protocols ie used Court as a first line of attack.

You are entitled to reclaim any unlawful charges on the credit card account, any unlawful charges applied to the loan a/c should also be reclaimed. Sadly the OFt lost an unlosable case in the brand new supreme court on od charges.

What was the name of the previous DCA you made payment too? £ to a p it's one of the Tessera group.

You've got lot's to run with on this one, you need info from the claimant and HSBC, you must acknowledge and file a holding defence whilst this information is obtained.

Suggest you get 3 x £1 postal orders and CCA request HSBC three times once under sec 78 CCA 1974 for the credit card a/c, once under sec 77 for the bank account and once under sec 77 for the consolidated loan account.

Get a £10 postal order and request a full subject access request from HSBC to cover all account information they hold on you for any account.

You will be writing to the claimant under CPR (seeking information and documentation) we'll advise on this later.

 

Guess your holding defence will be an embarrassed one as you are in possession of documentation which proves that the account in question was closed with a zero balance. You wouldn't be the first person to have a closed account reopened and debited by a bank or balances switched between accounts though.

Edited December 14, 2010 by Jasper1965

[wouldlikehelpplease!]

So it's a combined current account and credit card account consolidation loan is it?

 

Yup

 

Did you sign paperwork for this consolidating loan or did the bank help you out by doing it all for you?

 

I think they sent me some and I had to sign and send back.

 

Strictly speaking if they claim for monies owed under an account and that account can prove to be zero balance that should be the end of it but these people make up the rules as they go along.

 

I'm hopeful that this is possible - I got a printout from HSBC this week that shows it closing in 2005 with a nil balance. It doesnt show many transactions - not the loan that cleared it.

 

What they should be pleading is that monies are owed under the consolidating account not the bank or cc account as these will have been reduced to a zero balance upon entering the loan agreement. You could theoretically have paid off the two earlier accounts by taking a loan with Barclays then if you hadn't paid that loan, HSBC would have had no claim on either account (being satisfied). It's simple when two different banks are involved but tricky when it's all kept in house.

You would need to obtain a copy of the t&c's of the loan account to see what remedies were available to the bank in the event you defaulted.

I suspect that upon entering that third agreement the balance of the two previous accounts were consolidated.

I further suspect that the loan agreement is wholly unenforceable because:

There never was a signed agreement for the loan or if there was then it will not stand scrutiny.

 

How would I determine this?

The whole Tessera, Phoenix, rockwell pace Forward etc. etc. set up is excruciatingly complicated and obviously designed to be as difficult to penetrate as possible.

Tessera group PLC operate a debt collection service, Phoenix UK ltd SARL are actually a Luxembourg based US financed debt speculator. SARL is approx equal to a UK ltd company you would be forgiven for thinking this was a UK company.

 

You definitely are going to need to force the claimants hand here and get disclosure from them on a number of matters. It would be in your favour to subject access request the OC as soon as possible too.

 

Key points in no particular order so far are:

 

Account was closed with zero balance by virtue of any outstanding balance being paid from a consolidation loan.

The claimant did not issue you with a notice of assignment prior to commencing litigation notwithstanding the compliance of any assignment claimed. Failure to issue such a notice prior to commencement of proceedings can be fatal to any claim there's case law somewhere out there on this [Cia Colombiana de Seguros v Pacific Steam Navigation Co [1965]]

ref the final statement you mention:- how is the final credit to the account ie the one which reduced the balance to £0 described?

(Looking at the claimant it's highly unlikely that any assignments would be perfected anyway).

Without an absolute assignment in place the right to action has not transferred from HSBC to Phoenix, tessera or whoever really is the claimant.

The loan was presumably a regulated agreement, was any default notice issued prior to termination and if so was it compliant? I don't know - I guess when I SAR them this will be included? I think HSBC did send default notices but it was so long ago.

Claimant failed to comply with CPR and pre action protocols ie used Court as a first line of attack.

You are entitled to reclaim any unlawful charges on the credit card account, any unlawful charges applied to the loan a/c should also be reclaimed. Sadly the OFt lost an unlosable case in the brand new supreme court on od charges.

What was the name of the previous DCA you made payment too? £ to a p it's one of the Tessera group.

You've got lot's to run with on this one, you need info from the claimant and HSBC, you must acknowledge and file a holding defence whilst this information is obtained. What is a holding defence? Send them a written statement saying that I am awaiting these documents? Should I also mention that I would like it struck out based on the statement showing Nil-balance, or should I save this for later. It's very confusing.

 

Suggest you get 3 x £1 postal orders and CCA request HSBC three times once under sec 78 CCA 1974 for the credit card a/c, once under sec 77 for the bank account and once under sec 77 for the consolidated loan account.

Get a £10 postal order and request a full subject access request from HSBC to cover all account information they hold on you for any account.

You will be writing to the claimant under CPR (seeking information and documentation) we'll advise on this later.

 

I'm trying to look that up on here. So I'm sending four letters? Sending the fourth - the full SAR to HSBC's head UK office?

Guess your holding defence will be an embarrassed one as you are in possession of documentation which proves that the account in question was closed with a zero balance. You wouldn't be the first person to have a closed account reopened and debited by a bank or balances switched between accounts though.

 

Sorry for the delay, PC broken but I think fixed now. More money...

 

thank you so much for your help, it's great to hear from someone who knows what they are doing.

[wouldlikehelpplease!]

Should I not be demanding any paperwork from Phoenix Tessera at this stage as it is them that has brought this against me?

[wouldlikehelpplease!]

Right, I've SAR'd HSBC, and CCA requested Phoenix.

 

My defence is due at court 3rd January, so looking at the Christmas posting times etc I'll have to send around the 28th. Even less time.

 

Do I have to use the defence form or can I send a typed statement? Presumably I just put down that I deny the debt, the account was closed on zero balance (and attach statement to prove). If they haven't supplied the CCA stuff state that too, and state they never contacted me prior to sending court forms.

 

I am correct in thinking that if I loose and pay within 28 days the CCJ isn't recorded? Also how big are the fees/costs I could incur likely to be?

[dx100uk]

not sure on the defence not my game

but

when you have the sar

look for unlawful charges and ppi on the card

 

that will useful to reclaim or use as a counter here

 

dx