Tessera/ELS/Cole Claimform southend court - old with halifax Cetelem loan ***WON*** Court case dropped and compensation paid***

[Jasper1965]

4. The Default Notice was sent to you on 26 September 2008. A reconstituted copy is enclosed.

 

5. The Termination Notice was sent to you on 10 October 2008. A reconstituted copy is enclosed.

 

 

30 days hath September ergo if it was sent on the 26th sept and terminated on the 10th Oct they admit the DN to be faulty.

 

have you been prejudiced by this termination? Yes!!

 

Besides being deprived of the statutory period of notice in which to remedy matters you were prejudiced by the account being terminated, the bank refusing to deal with you or accept further payments under the original agreement, the marking of your credit files with the default prevented you from realistically being able to raise finance to settle this commitment from another source yada yada.

 

But what puzzles me is why the dn and tn's were sent in 2008 when you say it defaulted after approx 1 year and the account was purportedly assigned to a debt collector in 2003. What agreement exactly were they defaulting and terminating?

 

methinks this stinks.

Edited May 25, 2011 by Jasper1965

[Jasper1965]

hi dx,

 

thanks for your response, im not sure at all , i had a look at my credit report few months back and think i saw a payment in 2009, but i dont remember paying them, and not 100% sure that was for this debt

 

What does your crf say about this loan is it defaulted, if so from what date etc?

[Jasper1965]

Well done Penfolds excellent work getting these up so quickly.

 

There is so much wrong with the paperwork I just can't type or think quickly enough to point it out.

here are a few thoughts for now I'll go through it in depth a bit later. look on these as ramblings to be addressed rather than explanations.

 

Why are they approaching the OC for a copy of the agreement when they clearly state in the default notice that you defaulted on an agreement between Tessera and yourself dated 17th September 2003?

Did you ever enter into this agreement in Sep 2003?

is it possible they've invented this agreement to suit themselves?

Is it possible that they've kept a nine year old default alive by inventing paperwok to suit?

is it possible that Tessera were not formerly called Halifax Cetalem?

Would the deed of assignment reveal the account to have been terminated prior to or upon assignment?

Are Tessera licenced for banking?

Have Tessera falsely reported information to the CRA's?

Is that DN valid as it stands?

Is the DN valid if say the account was already terminated several years prior to issue?

Why have they added court fees to the account and the claim?

Are they allowed to add contractual interest?

 

 

Hopefully these issues will raise some discussion it certainly looks a very interesting if rather confusing state of affairs you find yourself in.

 

From what I can see the claimant has a real battle on their hands but there's a long way to go so we musn't get complacent.

 

Oh there's so much in here for you to work with.

Edited May 25, 2011 by Jasper1965

[Jasper1965]

 

I have to file a defense i think by 31/05/11 the issue date is 03/05/11, so plan to send this in Saturdays post, and allow 2 days for posting.

 

 

The claimant has agreed to an extension (in the cpr response because they haven't got the agreement).

 

You must write to the Court, enclose a copy of that letter and ask for a further 28 days in which to file a defence.

 

then you must send the claimants sols this:

 

Request for information pursuant to Civil Procedure Rules part 18.

 

 

Sir

 

I acknowledge receipt of your recent CPR 31.14 reply and confirmation that your client is agreeable to an extension, please consider this request as one made in pursuit of further information pertinent to the swift disposal of proceedings and made pursuant to CPR part 18.

In order that I may lodge my defence I require clarification of the following matters:

 

1) with reference to: The agreement between your client Tessera Portfolio management Ltd and myself Mr XXXX XXXX dated 17th September 2003 which is referenced in both the "default notice" and "termination notice" supplied by yourselves in response to my CPR request, please answer the following:

a) Does such an agreement exist?

b) Did such an agreement ever exist?

c) Can you confirm that I am a signatory to this agreement?

d) Was this agreement (if any) regulated by the Consumer Credit Act 1974?

e) I have no knowledge of this agreement, please outline the circumstances in which it was drawn up, signed and executed?

f) do the terms of this supposed agreement permit your client to charge interest monthly?

 

2) Do Tessera Portfolia Management Ltd hold the neccesary licences to enable them to lawfully run a banking facility in the United kingdom?

 

3) Was the account defaulted prior to the assignment from the original creditor?

 

4) Was the account terminated prior to the assignment from the original creditor?

 

5) What was the date the account was first defaulted and was this by your client or the original creditor?

 

6) Have your client ever been known as or have they ever traded as halifax cetalem credit ltd?

 

7) Do the terms and conditions of the original agreement permit you to add monthly interest to the alleged debt and if so at what specic rate?

 

8) Why have you added Court fees to the account and also added those same fees to the claim, I understand it is for the Court to decide what costs are payable?

 

9) In the event I were to succesfully argue that sight of the actual deed of assignment is vital to my defence are you able to provide a copy of the actual deed of assignment for scrutiny?

(Please note in respect of this request that I fully understand that you will have purchased this account for pennies in the pound and thus have no interest whatsoever in the sensitive financial information. I do however have grave concerns about the authenticity of your claim that the account was not defaulted and or terminated prior to your clients purchase. Thus I will be satisfied to see a redacted copy for my purposes but would expect the true copy to be made available to the judge at trial).

 

10) in light of the fact that your client has as mentioned in (1) of this request in late 2008 defaulted and terminated the agreement allegedly made between your client and myself in September 2003 (agmnt1) could you please explain why you refer to another agreement that made in december 2001 between myself and the original creditor (agmnt2) as being the written agreement upon which this action is based in your CPR response? In particular I require clarification of the following:

a) has the agmnt2 ever been lawfully terminated?

b) if so on what date?

c) Does a default notice exist in respect of agmnt2?

d) does a termination notice exist in respect of agmnt2?

 

11) I accept that I have made intermittent payments towards "an agreement", could you clarify whether those payments have been made towards agmnt1 or agmnt2?

 

12) Please clarify whether your client was in possession, or ever had been in possesion of the written agreement upon which this claim is based at the time the claim was issued

 

Your cooperation in responding to this request in a timely manner will undoubtedly help all parties observe the overriding principles, to this end I would expect to receive a reply within 14 days of the date of this request.

[Jasper1965]

And this:

 

Without Prejudice save as to costs

 

Offer of settlement.

 

Sir.

 

I acknowledge that your client would consider settling this matter for a lesser sum if proceedings can be avoided and enclose herein my offer for settlement which I re-affirm is made without prejudice save as to costs.

 

Offer in full and final settlement of all matters between myself Mr. XXX XXX and Tessera Portfolio Management Ltd.

 

I am prepared to permit your client to withdraw proceedings against me without opposal, application for costs or counterclaim subject to each and every one of conditions below being met by yourselves.

 

1) The alleged debt is extinguished permanently by your client.

2) The account will never be sold, assigned or permitted to suffer any form of collection activity by any party including your client and/or any unspecified 3rd party.

3) All adverse references to this account be removed permanently from any credit reporting facility.

4) A goodwill payment of £1000 be made to me by your client in full and final settlement of non specified damages incurred by me as a result of your clients damage to my credit rating.

5) All personal data relating to me under the control of your client be destroyed except such as specifically prevented by statute.

 

The above to be agreed in writing and signed by an officer of your client of sufficient stature to become legally binding prior to any settlement action being taken.

 

I understand this is probably not what you expected in terms of a full and final settlement offer but the facts of the case speak for themselves. I have taken advice in this matter and am confident that it will not be difficult to engage professional representation to defend your claim.

If your client is churlish enough to proceed with the action in what by the value of the claim is likely to be a costs bearing Court then it shall be stoutly defended.

Obviously it is not for me to point out the yawning chasms in your clients case but since this letter has been sent without prejudice I feel I can safely give you a few pointers which you might like to peruse and discuss with your client before agreeing to my generous offer.

1) your client appears to have invented an agreement in 2003, I have no knowledge of this agreement because it never existed. You might like to ask your client if they are prepared to argue and prove this averrment in a court of law.

2) Re 1) the default notice is worthless based as it is on an agreement that never existed. You might like to ask your client if they are prepared to argue and prove this averrment in a court of law.

3) RE 1) and 2) ergo the termination notice is worthless based as it is on an agreement that never existed. You might like to ask your client if they are prepared to argue and prove this averrment in a court of law.

4) RE 3) The right to add interest is highly disputable and open to being put to proof, based as it is on an agreement that never existed. You might like to ask your client if they are prepared to argue and prove this averrment in a court of law.

5) The account was defaulted and terminated in 2002 by the original creditor. This might cause your client some problems.

6) A part 20 counterclaim based on the false registering of a default (5) is worth about £8,000 at todays rates using case law.

7) there are numerous discrepancies and issues with the paperwork supplied, I reiterate it is not for me to point them out other than in my defence. your client might be well advised to receive some guidance on the finer points of the consumer credit act 1974 at this stage.

 

I feel that it is in the best interests of both parties if this matter can be resolved without the need to waste the courts resources. Your clients claim is in my opinion doomed to failure on many points only some of which I have alluded to within this letter. I am confident that I can not only defend the claim in its entirety but also enter a part 20 counterclaim or bring a separate action against your client for offences under the DPA1998. I am also confident that in defending this claim, I shall be able to make your client more than a little uncomfortable in respect of the evidence provided by them, some of which I aver to be bordering on criminal behaviour as defined by the fraud act 2006 and the theft act 1968.

 

I suggest that you re-examine the "evidence" supplied by your client and then honestly assess their likelihood of success and the likely cost of their failure.

 

you have 14 days from the date of this letter in which to accept this offer, failure to accept or reply within 14 days will be taken as a refusal and I shall then actively seek to have the entire farce played out before a judge in a costs bearing track.

[Jasper1965]

no probs penfold. Maybe it's the six pack that makes me so bullish about the f&f letter maybe it's because their case is the proverbial crock?

 

Does it make sense to you what I've written? The part 18 is a straightforward further information request which will let them know you're no pushover and is designed to cause them some problems.

i see a lose/lose here for them based upon you introducing the TWO agreements into your defence but won't elaborate too much for now.

 

there never was an agreement between you and them, they've made that up. You know it, I know it and most importantly they know it.

 

You need to be thinking towards raising a complaint with OFT, FSA and the ICO over their behaviour. the dodgy default is abhorrent behaviour. Because the original default would have been in 2002 they've invented an agreement in 2008 and then defaulted you on this imaginary agreement so they could continue to register a default against you.

This is actionable in its own right or as a counterclaim to this action.

Stupidly the imaginary agreement of Sep 2003 is mentioned in two legally binding documents entered into evidence as a result of your CPR request, so now you will force them to produce a copy bearing your signature.

 

 

Muppets!!

[Jasper1965]

no not to the Court.

 

without prejudice means neither party can present it to the Court.

save as to costs means you reserve the right to present it after judgment when costs are being argued as a sort of "Look your honour I made them a fair offer to settle for minimal expense but they still tried to bully the case through court, they deserve to pay to the max" statement.

[Jasper1965]

And one (or two) final questions before I sign off.

 

can you confirm that the claim was NOT submitted via MCOL?

What documents exactly were attached to the claim?

[Jasper1965]

 

Nothing else came with the above to support there POC

 

That's what I thought but needed to know thanks.

[Jasper1965]

not half as confused as they will be when they realise the extent of their mistake.

 

They have averred in the dn and tn that a new agreement was drawn up between you and tessera in sep 2003.

You need to know if the original agreement ie the one you signed with Halifax was defaulted and/or terminated at any time.

If it wasn't defaulted and terminated lawfully they have no right to seek enforcement.

Dont lose sight of the fact that you already know that there never was an agreement made between yourself and tessera in sep 2003, (an extremely pertinent fact which both the Court and the claimant are in blissful ignorance at the moment) their CPR response has revealed no documentary evidence that the original agreement was ever defaulted, terminated or superceded by their imaginary agreement.

 

 

 

And if it was defaulted and terminated lawfully...........

 

 

Then what the blazes is this 2003 agreement all about, what's the 2008 default notice all about and why are they recording a default date from late 2008 on this 8 year old debt?

Edited May 26, 2011 by Jasper1965

[Jasper1965]

Hey Jasper,

 

I have found some old correspondence collecting dust in the loft from the OC Halifax Cetelem, seems that they did default and terminate the account back in 2002.

 

Now the noose is getting tighter!

 

 

Oh well done sir!!!

 

Do I need to spell out the implications of this with repsect to the default notice, termination notice, the sep 2003 non-agreement, the false registering of the default in 2008.... Don't think so.

 

Have you sent the F&F letter yet it's my opinion that your offer was just a little too generous now you're in a position to prove that not only has this claim been brought upon dodgy docs but for three years they've falsely registered false information about you with the CRA's.

 

Put those docs in a very safe place for now, there's no need to mention they exist for a while yet and you can make these fools jump through hoops before you ever need to disclose them.

[Jasper1965]

A well written aq and draft will be priceless and should leave them nowhere to turn.

 

I note with interest their response to the Part 18 request, there are several points of use in their for your witness statement.

 

Their kind offer to remove all interest applied to the account speaks volumes. Was this part of the CPr reply or a separate letter headed "without prejudice"?

you have averred that the interest has been applied unlawfully and they have immediately offered to withdraw all interest from the claim. Hmmmmm.

Now the sums are rather different and in your favour as the claim for unlawful registration of a default should outweigh their claim several fold.

Of course we must still establish whether the account ever had any unlawful charges and interest applied prior to sale, whether the account was ever lawfully defaulted and terminated either before or after sale.

They remain in breach of the CCA request, have yet to justify whether they applied interest in accordance with the terms of the original agreement and they refuse to supply a copy of the deed of assignment which is pertinent to the case as it will prove whether the account was defaulted prior to sale.

All these matters can be addressed with a well worded draft.

 

If the account was defaulted prior to sale then a part 20 counterclaim should be entered for the default registration.

If the account was not defaulted prior to sale then for the reasons set out within your defence no valid default notice has been issued.

They have some big choices to make.

they've paid the fee and the aq fee that's about £400 now in fees.

They've effectively admitted that the interest shouldn't be on the account, hopefully on a document admissible in Court.

The recent default and termination are hugely defective which means the only way they can win is to prove that the default and termination occured prior to sale.

Which would leave them with the small matter of being guilty by default and their own admission of trashing your credit files from the date of the more recent default to date of settlement.

[Jasper1965]

I think any further F & F should draw attention to the following:

 

1) You are very comfortable with your defence as pleaded.

2) The burden of proof is upon them.

3) The value of the claim means a costs bearing track is likely.

4) Woodchester lease equates to over £8,000 in todays money for damage to credit. Yours has been falsely damaged for three years Khopraror endured 1 day.

5) Letters have been drafted for the OFT, The FOS and the ICO, the claimant may well be paying £500+ to enjoy the experience of having the dodgy default and unlawful application of interest investigated by these regulatory bodies.

6) You have already wasted dozens of hours of your time investigating and defending this speculative and vexatious claim.

7) You will as previously stated be quite content to see the entire farce played out before a judge of course this will occur after you have filed your party 20 counterclaim for the dodgy default.

8) The original "agreement" that never was is a sec 127(3) job.

9) They can discontinue any time right up to the steps of the court but the later they leave it the more it costs. By filing the aq they'll do another £250 plus of course if it goes that far then the letters (5) get sent so the true cost of them filing that aq is approx £1250 straight off plus higher costs and a part 20 counterclaim because you shall be filing an aq with draft directions concerning disclosure and the part 20.

[Jasper1965]

A+ Go get them zombies.

[Jasper1965]

This is fantastic news Penfolds.: Debt extinguished, credit records restored no worry about facing up to this in court and a little something towards the summer holiday for you to boot!! I'm really pleased this has been resolved so favourably for you and hopefully others can get some inspiration and draw some strength from this failed attempt to enforce a "" debt.

 

I'm sure upon analysis there are several salutory lessons for the claimant to learn from this affair, now's not the time for bitterness so we wont go over them but we can only hope that next time they try to take somebody for a mug over a dodgy debt racked up to the max with years of unjustifiable interest they think long and hard and remember the kicking Penfolds gave them before putting the N1 back in the drawer.

[Jasper1965]

Maybe they are guilty of knowing of the existence of this thread?