Brothers Welcome/Hagarty Claimform - old Loan - now 3yrs later IND are lifting the stay by N244

[Gaz7483]

Hi guys,

My brother has received a Claim Form from Northampton County Court, and has asked my advice on how best to proceed.....I wasn't too sure so I thought I should ask you experts!

The particulars of the claim states;

1. "The claimant claims for sums due under a/various Credit Agreement(s) related only to money regulated by the Consumer Credit Act 1974 entered into between the Claimant and the Defendant.

2. The agreement(s) was/were terminated upon the Defendant failure to comply with the terms of the Agreement(s).

3. The claimant complied with Section III and IV of Annex B of the PD Pre-Action Conduct.

And the Claimant Claims:

Personal Loan Account number ...... balance of 4,417.23 as of 4/4/05

. Interest under s69 of the County Court Act 1984 at the rate of 8% a year from 4/4/05 to 30/5/12 of 581.77

and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.97 AND Costs."

My brother says that this is the very first communication he has received regarding this debt.

The claimant is Welcome Financial Services, and the claimants solicitor is Hegarty LLP.

He has purchased copies of his credit report and this debt is not shown on any of them, we are wondering if this debt is now statute barred and unenforceable.

I have suggested sending back the Acknowledgment of Service, and then trying to get copies of the original agreement and notice of default, but the letter states that if a defence isn't supplied within 28 days then judgment will be entered without further notice

. I doubt that the solicitor will supply these document within the 28 days, but we cannot enter the defence that the debt is statute barred without it could we?

Thanks in advance for your help with this matter.

[numbers666]

Hi Gaz,

 

When was the last payment or acknowlegement towards this alleged debt ? This will be the factor in entering a SB defence.....

 

You can always file the AOS, and then enter a defense.

 

As it is the BH weekend, more learnt members may be celebrating

 

N

[Gaz7483]

Hi N,

 

Thanks for your reply.

 

He can't say for certain how long ago it was but, he believes he made only a few payments so it was probably sometime between June and September 2005.

 

I too was enjoying the bank holiday until he turned up with a letter demanding thousands of pounds and asking for my help

 

Gaz

[rebel11]

Hi gaz

 

Were you Mis-sold PPI on the loan? If you were it can be claimed back with interest. Over the last 6 years plus.

 

Have a read of 2 and 3 in my signature.

[Gaz7483]

Hi rebel,

 

Yes I believe he had PPI on the loan. Should I use this to make a counter claim?

 

Thanks,

 

Gaz

[Sidewinder]

I am guessing that due to the involvement of Hegarty LLP that this will also involve IND Ltd? Has there been nothing from them?

[Gaz7483]

Hi Sidewinder,

 

No there has been nothing at all from IND Ltd. This was the first correspondence received.

[postggj]

that is one lousy pertic of claim from solicitors who should kmow better

 

the norm is now for you to send the solicitors a cpr 31.14 request for copies of documents mentioned in the pertic of claim.

buit i ask, what documents, they have not included any. the only reference is agreements and ntermination

 

how on earth they expect you to defend that with no paperwork is beyond me

 

 

CPR 31.14 removed.

Edited June 4, 2012 by squaddie

[postggj]

if its IND THEN ITS

 

verde investments and experto credit

[Gaz7483]

Hi squaddie,

thanks for the advice and the letter to send.

In the above letter it mentions about the claim being for less than £5000, but on the particulars of claim it states (and it looks highly improbable!) that the balance on the loan is £4417.23 + the interest of £581.77, which rather incredibly comes to exactly £4999

! It seems as though they made up penalty charges and whatever so it worked out at that amount!

With the court fee of £85 and Solicitors costs of £80 the total claim comes to £5164.

Can I ask what the significance of the £5000 threshold is as they seem to have worked pretty hard to ensure the total came to above it!

The more I read this Claim Form and the advice on here the more I think that this is very shoddy work and an attempt to scare people into paying back debt which in all likelihood is already statute barred.

[postggj]

under 5000 means the court can deal with it as small claims

 

over 5000 then it becomes fast track with higher costs and more avenues to go down to get them to release info they will not want to release

 

small claims is like an automatic process. solicitors and dca like small claims as they get a lot of ccj judgements by default as the defendants does not defend as they stick their head in the sand

 

send the cpr 31.14 to the solicitors by recorded delivery and lets see what they come back with

[Gaz7483]

Ah I see, so they have worked out the total to be as close to £5k as possible so that it does go down that almost automatic route? Very crafty.

 

Thanks for the advice squaddie, greatly appreciated. I'll get that letter sent and then come back with the response I get, if any!

[Gaston Grimsdyke]

The statute barred defence is a slam dunk, just go with that and don't waste your time with anything else.

Their particulars of claim even give you the evidence you need - they have pleaded a balance which was due as at 4/4/2005 which is the same balance now - in other words no payments have been made since 4/4/2005, more than 6 years ago so that's that.

They have deliberately restricted their interest to a sum which brings the total claim to just under £5K (which is fair enough), quite clearly because they know claim is hopeless and don't want a costs penalty.

Well, unless and until the claim is assigned to small claims track (which has not happened yet), the normal costs rules apply.

Your brother should file the very simple defence and at the same time make an application for summary judgment under Part 24 of the CPR.

He will then be able to recover his costs when the claim is dismissed.

[postggj]

in a sense i agree with the above but you need to confirm that the account is in fact statute barred first.

 

if you enter a defence and need to ammend the defence later on because the dca has by magic got a letter from you to acknowledge the debt or a phantom payment. you will have to pay all costs if you lose the case.

 

the civil procedure rules are their for you to plead your case, so use them, at most the claimant will ask for a 28 day extension as to cpr 31.15

 

so their is no need to go gung ho with a defence you are not 100 % sure on

[Gaz7483]

Thanks for the advice guys. I'll send the letter & let you know the reply. It does look to be an open and shut case so I'm not nearly as worried about it as I was so thanks!

 

Gaz

[andydd]

Couple of points to add, if there was no previous correspondence then they cant have complied with the pre action protocols. Also I believe a request can be made under CPR 18 for additional info, this is applies even if the claim is on the small track i believe.

 

Andy

[Gaz7483]

Hi Andy,

 

Would the info under CPR 18 be the same as that under CPR 31.14?

 

Thanks,

 

Gaz

[andydd]

Well..yes..and maybe. the first part explains it:-_

 

18.1

 

 

(1) The court may at any time order a party to –

 

 

(a) clarify any matter which is in dispute in the proceedings; or

 

 

(b) give additional information in relation to any such matter,

 

whether or not the matter is contained or referred to in a statement of case.

As you can see its not limited to stuff mention in SOC (as CPR 31.14 is).

 

I used it in a recent claim to find out some stuff relevant and some other bits which was kinda relevant but was being a bit nosey, anyway, i sent off my formal request, no response, so next step would of been to ask court to enforce request but I didnt need to as the case was struck out anyway.

 

See here >http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part18

 

Practise Direction 18 explains the actual process > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part18#id3585785

which is to ask for it informally and then if no response ask the court to request it.

Andy

[Gaz7483]

Hi Guys,

Had the first reply yesterday.

I sent a CPR 31.14 request to the solicitor, a s.77 request to Welcome Finance, and also a SAR to finance.

The only letter that they have replied to thus far is the SAR, and it's asking my brother to provide a utility bill, passport, or, driving licence to confirm his identity before they release anything. I thought that this was slightly unreasonable, and a delaying tactic. However, looking back on the standard letter that I took from this site the last paragraph states;

"If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return.

However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable."

I know that in the grand scheme of things this doesn't affect my defence because I have to submit that by July 2nd and they have 40 days to respond to an SAR.

But having supplied the £10 fee and wanting to see what information they hold,

I'm really not sure how to progress.

Thanks again in advance.

Gaz

[postggj]

i take it the claim has been acknowledged, please confirm

 

what date was the cpr 31.14 sent and received by the solicitors

[DonkeyB]

You may as well call Welcome and ask them directly when the last payment was made, when the account was defaulted, and when it was sold and who to.

[Gaz7483]

Hi Squaddie,

 

Apologies, yes the acknowledgment of service was done online on the 12th June. The cpr 31.14 was received by solicitors on 13th June.

 

DonkeyB, I have sent them the £10 though in order to secure the information, they wouldn't send it back would they?

[DonkeyB]

Yes, they’ll still have to respond, but that can take 40 days. They should respond to CPR, but usually don’t, at all, within any agreed timeframe.

 

Always worth a call – you have nowt to lose.

[Gaz7483]

OK cheers, will get on it.

[postggj]

if they do not respond to the cpr 31.14 request a strike out by an n244 application notice

 

Claim No: xxxxxx

 

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice and [3] the deed of assignment

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) 28 days from date of application and

[ii] the Claimant shall pay the Defendant his/her costs of this application