N1 Claim Form received for old Welcome Finance debt

[Fars]

Ah also the CPR 31.14 states:

 

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

 

Which isn't true at the present time, do I need to remove or amend this or leave it as is?

[AndyOrch]

Ok will head to the library tomorrow to get these printed and sent.

 

Couple of quick questions. The CPR 31.14 mentions covering their [solicitors] costs for the information request, do I need to stick a postal order in the same as with the Section 77 request? No

 

And secondly does the Section 77 go off to the Solicitors the same as the CPR 31.14?

Yes

[AndyOrch]

Ah also the CPR 31.14 states:

 

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

 

Which isn't true at the present time, do I need to remove or amend this or leave it as is?

 

Change - Its my intention to contest all of your claim on my completion of Acknowledgement.

[Fars]

Thanks as always for your quick replies Andy, I believe that is the CPR 31.14 ready to go tomorrow.

 

With the Section 77 going to the solicitors do I put the "Account/Reference Number" as my Claim No. or is there another reference number relating to the welcome loan I should be digging out?

[AndyOrch]

No mention of claim numbers or litigation just your account number. I assume this is going to IND so you need to head your request " I do not acknowledge any debt with your Company " until they prove otherwise.

[Fars]

Thanks for clearing that up.

 

In posted reply #27 above I was asking if the Section 77 went to the Solicitors (Hegarty) or IND and you replied yes to Solicitors, so was unsure what to use as the reference.

 

Yes

 

 

Adjustments made to the Section 77.

 

Sorry for being so needy with the questions. With luck it will all pay off.

[AndyOrch]

Actually Fars considering this is IND send both to their Sols sorry oops

[Fars]

Ok Andy, understood.

 

Been reading the threads havinastella posted regarding IND, even to my limited understanding they seem like a bunch of cowboys.

 

With the Section 77 going to the sols do I still include "I do not acknowledge any debt with your company"? and do I revert to the Claim No?

 

Sorry for all the babysitting questions, this seems to be more confusing than necessary with never really knowing who I am dealing with

Edited May 21, 2012 by Fars

[AndyOrch]

Thats the problem you face when these guys issue a claim no need for the " I do not ack " if going to the Sols. Dont refer to the claim its a legal request.

 

Andy

[hmmh1978]

Section 77/78 requests are to be sent to the creditor and not to the solicitor. Solicitors are NOT creditors under s 189 of the Consumer Credit Act 1974 if representing a client:

 

“creditor ” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

[AndyOrch]

*

Section 77/78 requests are to be sent to the creditor and not to the solicitor. Solicitors are NOT creditors under s 189 of the Consumer Credit Act 1974 if representing a client:

 

“creditor ” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

* Providing the Claimant is not IND or it will be ignored as have all the other 30 IND cases working on.Litigation has commenced Fars so its the duty of the acting Sol to pass it on and be aware of the request

[hmmh1978]

It is at the discretion of the solicitor to pass it on. Note the word discretion. The solicitor is not duty bound to track whether it gets a reply as it was sent to the wrong place. If a defence was made about this non-compliance, it can be shown that it was sent to the wrong place thus there is more wiggle room for the claimant.

 

You cannot circumvent the law just because the claimant is allegedly going to ignore the request and has allegedly done so in the previous 30 cases. That is not a tactic. It is better to send it to the claimant because there is no denying that they did not receive it, especially with registered delivery/special delivery. That is where the s 77 and s 78 requests are supposed to be sent.

 

By sending it to the solicitor, there is no time limit as they are not the claimants so there is no breach even if they did not comply. Please re-address the logic as it does not stand legally.

[AndyOrch]

Ok Fars Change it back to IND there was reasoning as to my logic but hmmh is technically correct and I understand his reasoning.

 

Thank you hmmh

 

Regards

 

Andy

[hmmh1978]

No, thank you Andy for your work here.

[Fars]

Ok changed it back to IND's po box.

 

Thank you both for your input and clarification, it is really appreciated.

[Fars]

Well sadly I've heard nothing back from IND or their pretend legal representation. Nothing back at all re: the Section 77 or 31.14.

 

Could use some advice on what to do now please?

 

Regards,

[AndyOrch]

This should make your day Fars read here :- http://www.consumeractiongroup.co.uk/forum/showthread.php?326045-Creditor-has-made-claim-through-court-***-Claim-Struck-out-***/page4&highlight=ind

 

Regards

 

Andy

[Fars]

Thanks for that Andy, was an interesting read. I can only hope for a similar result

 

I could do with a little help filling out my defence on MCOL, any advice on how to proceed please?

[AndyOrch]

Defences are unique and not templated and should be based on your own personal pleadings subject to your dispute.Dont worry that's it not legalised wording, just state why you don't agree with the claim.

 

Regards

 

Andy

[Fars]

Ok sounds good.

 

I'm presuming that having sent off a section 77 and 31.14 and having heard nothing for 2 weeks that I'm going with an embarrassed defence?

[AndyOrch]

No such thing as an embarrassed defence its either an holding defence or a fully particularised defence.

 

Andy

[Fars]

Thanks Andy,

 

Am still feeling a little lost though.

 

In my particular case where I've sent off the cpr 31.14 and section 77 and having no response what kind of defence do I use?

[AndyOrch]

I would suggest a short holding defence in the absence of anything being disclosed.You must realise though that that is not a reason to defend a claim.You either owe the money or not or the matter is subject to a dispute.Any holding defence must be updated later to a fully particularised defence and this will have a bearing on any costs awarded.

 

Regards

 

Andy

[hmmh1978]

andyorch, may I suggest that you purchase the White Book off ebay and look up the section on "Holding Defences" and why they are a non-starter. It is under CPR r. 15.5.

 

I would copy the paragraph here however that would have copyright implications. To summarise:

 

Defendant cannot get more time by filing a holding defence.

Holding defence does not comply with CPR r. 16.

Such a defence is liable for a strike out application under CPR r. 3.4.

 

A defence based on what is currently known is the best way forward, not a holding defence, even if that is scant.

 

A line about not being able to enforce due to breach of s 77 is a start. Was a default notice received to the best of your memory? Did you sign an agreement to the best of your recollection?

 

A defence is not solely based on what you get from the claimants but is also reliant on your own experience and the paper work you have in your possession.

 

I will step out of this thread now as I only wanted to intervene on a matter of importance before it becomes mainstream.

[Fars]

Thank you both for your input. With a holding defence based on requested information not received, if the claimant isn't going to provide any paperwork then how does it ever proceed?

 

Sadly I am still feeling unsure how I should proceed. The advice I was given earlier in this thread was to send off the information requests and then base my actions on the outcome. The outcome is now here, no information received.

 

I believe they've made the claim against me without the required paperwork, credit agreement etc. The debt dates back to 2005, i've never been notified of the debt being sold from welcome to ind.

 

I was sent a letter on the 24/04/2012 which arrived on 26/04/2012 titled last letter before legal proceedings, which I assume is the default notice, strangely it says I defaulted on the loan on 02/12/11, no idea what that date relates to.

 

They issued the claim on 14/05/2012 which is 18 days after the last letter, no idea if that has any baring on this.

 

The really frustrating thing for me is I've been eligible for a debt relief order for 6 years, but never had the money or ability to go through with it, i'm still eligible now but sadly CCJ's can't be included I think.

 

I could really use some concrete direction on what to do next, how to proceed.