Robbersway/Hagarty Claimform - Secure Plus Loan debt - Faulty default notice?

[citizenB]

This was drafted for another cagger.. a JIC defence. I would say leave the first pagragraph as it pretty much reflects the PoC that you have been provided with and play around with the rest.. advising that the claimant has been obstructive in not providing information via CPR and that you have made application for the information which forms the basis of their claim but which they appear reluctant to share with you in order that you may enter a defence.

 

HTH

 

 

xx

 

 

 

Defence in the event that the written confirmation doesnt appear on time.

 

 

 

1: The Claimants pleaded case is not sufficient for the purposes of CPR 16. The Claimants pleaded case is lacking the most basic facts and detail such as dates of demands made by the Claimant, date of default, date of service of notice of assignment, date of service of default notice and date of agreement, which has alleged to be breached. This information is fundamental to the Claimants case, yet no details are offered or pleaded.

 

2: On receipt of the claim form - the defendant immediately requested information by way of CPR31.14 and CPR 18 both these requests have been received as evidenced by the signed delivery slips obtained from the Royal Mail Website. Yet to date the Claimant has failed to respond.

 

3: Prior to the issuance of the claim by the Claimant and in response to threats of legal action from them, the Defendant had requested information by way of Data Subject access request (DSAR1998) to the Original Creditor, Santander. In this respect Santander has failed to respond and is in breach of its legal obligation to comply within 40 calendar days. Again the defendant can evidence receipt of the request by way of the legal fee of £10.00 being cashed and the signed delivery receipt from the Royal Mail Website. The defendant will be issuing a separate claim against Santander for compliance of her request.

 

4: The Defendant believes there was a valid and unresolved dispute between the original creditor and herself and had advised the Claimant in this claim of that fact. They have however issued their claim and then have failed to provide the very documents they require to support their claim and which at the same time denies the Defendant the opportunity to submit a properly particularised defence.

 

5: On DATE realising that the Claimant was not going to comply with her CPR requests, the Defendant requested an extension of time by way of CPR15.5.

 

 

6: The Claimant finally agreed to an extension of 14 days providing for a new submission date of ???? The court were advised of this on DATE

 

 

7: Having agreed to an extension in order to provide the Claimant with more time to respond to requests made by the Defendant under CPR31.14 and CPR18, the Claimant advised in a telephone conversation on ??? that the information requested would not be available for a further 6 weeks.

 

 

8: The Claimant has issued a claim without being in possession of the information on which they base that claim which in turn is frustrating the attempts of the Defendant to submit a defence.

 

9: Consequently, the Defendant denies all allegations on the Particulars of Claim and put the Claimant to strict proof thereof

 

10: The Defendant respectfully requests a stay in proceedings until such time as the Claimant complies with the requests outlined in paragraphs 2, 3 and 7 above or until the Court orders its compliance with the same. I will then be in a position to file a fully particularised Defence and Counterclaim and will seek the Court’s permission to amend my statement of case accordingly.

[DD maker]

Well I spoke to the court today. They have received my N244 application and posted a letter out to me yesterday.

 

They tell me there is a bar on judgement (preventing RW getting judgement by default), apparently I may not get a decision on my application for 3-6 weeks.

 

When asked, they said that once a decision was made re my N244 then, if the judge refused my application, RW would be able to enter judgement against me - therefore I should still enter a defence to prevent that happening (once a decision is made on the N244 then RW and I will be notified).

 

I'll draft up a defence over the weekend and submit it as I don't want to risk a refusal of my N244 and RW getting judgement by default before I receive the notification.

[DD maker]

Hi All,

 

Would appreciate your opinions on the following holding / embarrassed defence I have constructed before I submit it via MCOL.

 

 

1: The Claimants pleaded case is not sufficient for the purposes of CPR 16. The Claimants pleaded case is lacking the most basic facts and detail such as date of default, date of service of default notice, date of assignment, date of service of notice of assignment, date(s) of demand(s) made by the Claimant, and date of agreement, which has alleged to be breached. This information is fundamental to the Claimants case, yet no details are offered or pleaded.

 

2: On receipt of the claim form - the Defendant on [DATE], and again on [DATE] (as the initial letter dated [DATE] appears on the Royal Mail Website to have not been delivered), requested under CPR 31.14, documents mentioned in the Particulars of Claim, via the Claimants solicitors Hegarty LLP, as can be evidenced by a Proof of Posting receipt (for letter dated [DATE]) and signed delivery slip obtained from the Royal Mail Website (for letter dated [DATE] and delivered [DATE]). IND Ltd, referring to my letter dated [DATE], refused my request in a letter dated [DATE]. To date the Claimant has failed to respond.

 

3: On [DATE] as IND Ltd had refused the Defendant’s CPR 31.14 request / the Claimant had failed to respond to the Defendant’s CPR 31.14 request, the Defendant made a request under CPR Part 18 to obtain information via the Claimants solicitors Hegarty LLP (delivered [DATE]), as can be evidenced by a signed delivery slip obtained from the Royal Mail Website. Yet to date the Claimant has failed to respond.

 

4: On [DATE], as IND Ltd had refused the Defendant’s CPR 31.14 request / the Claimant had failed to respond to the Defendant’s CPR 31.14 request, the Defendant requested, via the Claimants solicitors Hegarty LLP, an extension of time under CPR 15.5 (delivered [DATE]), as can be evidenced by a signed delivery slip obtained from the Royal Mail Website. Yet to date the Claimant has failed to respond.

 

5: The Defendant therefore submitted to the court an N244 application, dated [DATE] (delivered [DATE]), requesting an order from the court that the Claimant provides documents requested by the Defendant under CPR 31.14 and information requested by the Defendant under CPR Part 18.

 

6: The Claimant has failed to provide the very documents they require to support their claim and which at the same time frustrates and denies the Defendant the opportunity to submit a properly particularised defence.

 

7: Consequently, the Defendant is unable to admit or deny the Particulars of Claim and puts the Claimant to strict proof thereof.

 

8: The Defendant denies that the Claimant is entitled to any of the relief claimed or at all.

 

9: The Defendant is embarrassed and respectfully requests a stay in proceedings until such time as the Claimant complies with the requests outlined in paragraphs 2, 3 and 4 above or until the Court orders its compliance as outlined in paragraph 5 above. The Defendant will then be in a position to file a fully particularised Defence / Counterclaim within 14 days of the Claimants compliance and the Defendant seeks the Court’s permission to amend his statement of case accordingly.

 

 

Thanks in advance.

[citizenB]

3: On [DATE] as IND Ltd had refused the Defendant’s CPR 31.14 request / the Claimant had failed to respond to the Defendant’s CPR 31.14 request, the Defendant made a request under CPR part 18 to obtain information via the Claimants solicitors Hegarty LLP (delivered [DATE]), as can be evidenced by a signed delivery slip obtained from the Royal Mail Website. Yet to date the Claimant has failed to respond.

 

4: On [DATE], as IND Ltd had refused the Defendant’s CPR 31.14 request / the Claimant had failed to respond to the Defendant’s CPR 31.14 request, the Defendant requested, via the Claimants solicitors Hegarty LLP, an extension of time under CPR 15.5 (delivered [DATE]), as can be evidenced by a signed delivery slip obtained from the Royal Mail Website. Yet to date the Claimant has failed to respond.

 

 

You could reduce this to perhaps..

 

3: The Defendant has made repeated attempts via CPR 31.14 and CPR 18 to obtain information on which the claimant bases their claim. It can be proved by way of Royal Mail proof of posting receipts and delivery receipts form Royal Mail's website that these requests were received by the claimant. To date the Claimant has not responded.

 

4: In view of the lack of response to the above, the Defendant requested more time by way of CPR 15.5, in order that the Claimant would have more time to produce this information. Again, proof is available that this request was received. To date no response has been received.

[citizenB]

2: On receipt of the claim form - the Defendant on [DATE], and again on [DATE] (as the initial letter dated [DATE] appears on the Royal Mail Website to have not been delivered), requested under CPR 31.14, documents mentioned in the Particulars of Claim, via the Claimants solicitors Hegarty LLP, as can be evidenced by a Proof of Posting receipt (for letter dated [DATE]) and signed delivery slip obtained from the Royal Mail Website (for letter dated [DATE] and delivered [DATE]). IND Ltd, referring to my letter dated [DATE], refused my request in a letter dated [DATE]. To date the Claimant has failed to respond. Although these letters are showing as undelivered on the Royal Mail Website, to date they have not been returned to the Defendant.

 

Bit added to the end

[DD maker]

Hi citizenB,

 

Thanks for looking over the defence, I'll amend as suggested.

My first CPR 31.14 letter, even now, shows as 'being progressed through our network for delivery' on the RM site but is the one IND refer to in their refusal letter.

The second 31.14 letter was delivered but ignored (identical letter as the first one, delivered before their reply to my first letter and I guess they didn't feel the need to reply rejecting it again).

 

Should I therefore not include,

Although these letters are showing as undelivered on the Royal Mail Website, to date they have not been returned to the Defendant.

 

Bit added to the end

[tiger66uk]

Dd maker, I will be following you closely, we are at the same stage. Best I get a defence in as the court didn't advise me too. I didn't realise that if it was refused then they could enter a default that fast.

[DD maker]

Hi tiger66uk,

 

I don't know how quickly the claimant can enter default judgment if my N244 application is refused (don't expect it to be), the judge might refuse and give me 14 days to enter a deefence for example.

 

The court suggested entering a defence anyway, just in case (guess I might be refused my application and not receive the letter from the court, then the claimant gets their letter and enters default judgement - don't want to risk that remote possability).

 

Entered my holding / embarassed defence last night, processed by the court this morning. Now I wait to see what the court order / RW do next.

[tiger66uk]

Had a reply from northampton and mine has been referred to my local cc to be heard on notice. Do you think they will turn up?

[DD maker]

Hi tiger66uk,

 

Not really sure if Hegarty / RW (or their appointed local solicitor) will turn up in your case - have you received anything from your local court regarding attending or dates?

 

 

In my case I had my N244 application approved - RW must provide docs as per the CPR 31.14 request and answer my CPR Part 18 questions by the end of the month, my defence must be entered 2 weeks later. RW also to pay my N244 costs of £45 . No order for strike out for failure to comply - in-fact no order regarding what would happen if RW fail to fully respond to the court order.

 

My MCOL defence was also acknowledged by the court - RW have until mid April (date is before my N244 defence is due in) to decide if they want to continue with the claim (if they do I believe the case will transfer to my local court). If RW do not inform Northampton that they want to proceed the case is stayed.

[tiger66uk]

Must admit I don't understand why mine wasn't responded too the same way as yours. No consistency.

No dates as yet. Hope I have not done anything wrong.

Let's hope they don't turn up. Makes my life easier.

[PGH7447]

My Local court told robway and heggies to comply with my cpr and then i can submit a new defence, so it looks as though IND and company have been sussed out as being total numpties, who are trying to bluff people with their refusal to comply with any CPR requests -

[tiger66uk]

So getting allocated to my local court is not a bad thing then. Let's hope they turn up to face the music then. Must be costing them a fortune in travel costs lol.

[PGH7447]

Standard for a case to be transferred to your local court, remember Northampton is just a bulk clearing centre used by these scavengers

[tiger66uk]

Thank god for that.

[PGH7447]

what will happen if it does get to court is that they will instruct some local lowlife sol to represent them, and most of the time this person will have no idea what the case is about nor have the proper paperwork

[tiger66uk]

Considering this is in response to my n244 request for the court to ask for the documents they rely upon, not the actual case itself, you would like to think they would turn up. Court paperwork states 'to be read on notice to the claimant '

[PGH7447]

dont hold your breath

[tiger66uk]

Hey, I can't believe my eyes. Robbers way have increased the default on the credit reference agencies without a court judgement. How on earth can they be allowed to do this?

In short, they have added the costs and interest to these sites so anyone checking my file thinks I owe even more.

[Guest]

'default records should show the original amount of the default...'

see eg p13 etc default guidance pdf here http://www.consumeractiongroup.co.uk/forum/showthread.php?323570-Default-Info

[vint1954]

Hi DD Maker,

 

I have had a money claim transferred to my local court after having been stayed for 24 months.

 

Nothing from the solicitors, just an N271 issued from Northamton. Not sure if this is because of the new rules that came into force on 19th March.

 

Did you manage to sort out your defence for the faulty DN.

 

Vint

[DD maker]

Hi vint1954,

 

I've not sorted my defence on a faulty DN yet - still have 3 weeks to amend my defence (2 weeks from the date on my Northampton N244 order for RW to provide docs in the POC).

 

I will start formulating my faulty DN issues into a defence over the next week and add any further issues that RW's docs throw up (I have an idea that there will be at least 2 or 3 other avenues to defend on).

[vint1954]

DD,

 

By all means have a look at this one and see if any points fit your case:

 

The Default Notice.

 

5. The Claimant issued a Default Notice to the Defendant on xxxxxxxxx, served under section s87(1) of the Consumer Credit Act 1974.

 

a) 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).

 

b) It is submitted that the Claimant:

 

(i) Did not give sufficient time for the defendant to remedy the alleged breach or indeed seek legal advice, thus rendering the Default Notice unlawful.

 

(ii) Requested the full balance of the account within the Default Notice, in place of the arrears due at the time of issue, rendering the Default Notice unlawful under s87 & s88 of The Consumer Credit Act 1974.

 

(iii) Further unlawfully rescinded the agreement by requesting the balance of the account in full, following a non compliant Default Notice, an action which the defendant accepted in writing.

 

c) The Default notice issued by the Claimant is dated xxxxxxxxxxxxxx, posted second class. To allow service in line with the statutory requirements 4 working days ( excluding weekends ) were required to allow for 2nd Class postage. Thus the date to rectify the default, should be 14 clear days from service, xxxxxxxxxxxxxxand not the xxxxxxxxxxxxxx, allowing only xx clear days to rectify the default. In actuality, I received the Default Notice on the xxxxxxxxxxx, allowing only xxclear days to rectify the breach. This is in clear breach the regulations mentioned in 5(a) above, and the intent of Parliament, who changed the term to 14 clear days from 7, in a clear effort to protect the debtor.

 

d) The Claimant failed to ensure that an adequate and timely method of service of such a vital document was employed.

 

e) I would refer to the Interpretation Act 1978 Section 7, and Practice Direction from 16th April 1985, with regard to the service of documents by post. Service by second class post is deemed 4 working days ( excluding weekends ) following the date of posting.

 

f) The Claimant is put to strict proof that any Default Notice was indeed posted on the xxxxxxxxxxxxxxxxx.

 

g) For the consequences of the failure of a default notice to be accurate I would point the Claimant to the judgement handed down at appeal by the High Court in the case of: (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) by Lord Justice Kenedy.

 

“Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.”

 

Woodchester v Swain & Co

 

“It is worth remembering that very often these type of contracts are, in fact, complicated in themselves, quite apart from the question of any default, that those who draw up the contracts, that is to say, the finance companies, have necessarily the obligation of being able to calculate what is owing thereunder.

 

As Mr Hodgkinson points out, the words of Section 88 (1) require the lender to "specify" not only the nature of the breach - which in this case was adequately described as failure to pay the rental specified on their due dates - but also what action is required to remedy the breach. In the context of this case that meant specifying accurately what sum of money had to be paid.

 

Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid

 

Vint

[DD maker]

Thanks vint1954,

 

I'll review it over the next couple of days - think I have some of the case law bookmarked already.

[tiger66uk]

[QyUOTE=Ford;3764495]'default records should show the original amount of the default...'

see eg p13 etc default guidance pdf here http://www.consumeractiongroup.co.uk/forum/showthread.php?323570-Default-Info

 

Thanks Ford, I will try and argue the case with the cra's but I won't hold out much hope. The only ones that will make an adjustment is callcredit. The other two request you contact the debt holder and they alone will be able to adjust the record.