Another Sigma Claim Form - M+S card

[the_shadow]

Probably already seen but take a look at this claim

 

 

good advice and the claim was put in back in May

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?350237-Sigma-red-spv-Court-Claim

[Pumpkinhead]

Hi Pumpkinhead thanks for that-I've been able to get back up to speed today with a lot of stuff and the gloves are now firmly back on

 

It's a good point about this not being a split claim, but is actually a partial claim. I understand the SRA are not enamoured by such actions and I don't think if it got anywhere near a DJ he/she would be either, particularly as its an interest only claim, pre-empting any judgement by the court. I'm pretty sure doing so also falls foul of s82A of the CCA as well. In fact all in all its a very dodgy way to proceed claims-wise and I'm sure Sigma knows this; they are trying it on with a 'who blinks first' approach and hoping for a few people to pay in full to make up for their gamble on court costs I reckon,knowing full wellthta if they get challenged they'll just discontinue and move on to who they hope are less clued up.

 

Your point on the Late payment of Commercial Debts [interest] Act isinteresting...will look further into that.

 

Yep CPR can be pursued straightaway because the claim is of course trackless until the AQ- although as Shadow rightly pointed out, the DCA may try to be awkward over it but if they are, that tells a story in its own right. I've seen them say things like 'we are not obliged to show you any evidence through CPR and we are confident regardless that we have adequate documentation to obtain a ruling against you' whilst a few lines before effectively admitting they have nothing. Well good luck with that guys

 

Like I said in my other post- take a belt and braces approach. Maintain the initiative and allow them no wriggle room whatsoever. I have a hunch the likes of Sigma will then capitulate sooner rather than later.

 

I agree the assignment notice is incorrectly served Skemdosser as not sent by registered mail and thev won't have any proof of delivery, but I think this might be classed as de minimis. I got a letter from M&S in same envelope as the assignment from Sigma so notice was sent by the OC. If we say we didn't get the assignment notice it will just be a case of tough like if you say you don't receive a default notice.....

[Mike_hawk]

Pumpkin, Hammy

 

Noa can be served by assignee or assignor, wouldn't be inclined to rely on bad notice in defence.

 

Pickthall 'clean hands' approach may be of greater assistance in denying relief

 

http://www.bailii.org/ew/cases/EWCA/Civ/2009/543.html

 

Phil

[Guest]

interesting case. j waksman?

as you'll know, 'clean hands' also requires that the claimant ought not to be in breach of 'vital obligations' (as defined in any given circumstances) themselves prior. and, as you say, 'bad' service of an noa prob won't be enough on its own.

 

as for interest generally, are they claiming pre or post J interest? statutory or contractual? what are the particulars of claim? statutory interest up to judgment is claimable (subject to any other interest being applied), usually up to 1 yrs worth re reasonableness, then up to the j whether to award or not in consideration of the circumstances, if it comes to that.

Edited July 16, 2012 by Ford

[SkemDosser]

I agree the assignment notice is incorrectly served Skemdosser as not sent by registered mail and thev won't have any proof of delivery, but I think this might be classed as de minimis. I got a letter from M&S in same envelope as the assignment from Sigma so notice was sent by the OC. If we say we didn't get the assignment notice it will just be a case of tough like if you say you don't receive a default notice.....

 

Whilst it's vital to be as informed as possible, I think it's important to keep things simple: as far as I am concerned I have received no notice of assignment regarding this debt, regardless of who claims to have sent it. So far as I am concerned I have a disputed debt with M&S, no one else. Until anyone pursuing a claim in court [in this case Sigma] can prove conclusively that they served an NOA on me, in accordance with the Law of Property Act, they do not have rights as absolute assignee to pursue legal action. This is a point of law that really cannot be avoided.

 

It really is as simple as that. If anything you receive through the post under ordinary mail purporting to be an NOA has not in anyway been acknowledged by yourself to the sender, then effectively treat it as if it doesn't exist. File it, but treat it as meaningless. In legal terms you know nothing about it. In the [very unlikely IMHO] event it gets to court, the claimant can be put to strict proof on the absolute assignment, and must produce it. In 90%+ of cases it will I reckon either not exist, be defective, or be part of a bulk assignment as one amongst thousands. In the latter case the logistics of having to produce an assignment tailored specifically to you would, alone, put the clamant in a spin.

 

As I said in another post, the important thing is to keep on the offensive from hereonin, make the claimant do the work and operate on the backfoot. Maintain the initiative at all times. And particuarly as we are dealing with a dodgy claim here from the outset, in time they will throw the towel in.

Edited July 16, 2012 by SkemDosser
typos as ever

[SkemDosser]

Hi folks thanks for all the links etc so far partic from Shadow, very useful, but what in plain English is this 'clean hands' business' all about?

 

I think also we need to be very careful here to keep things as simple as possible. These forums are great but we all run the danger of getting immersed in so much information that we end up not being able to see the wood for the trees, and we read so many personal cases that we end up trying to second guess what's going to happen with endless scenarios that, in the end, befuddle us and blunt our effectiveness.

 

Remember we are ordinary people who have run into financial problems. We are can't pays, not won't pays. We are also intelligent and informed enough these days to deal with the- often outside of the law- machinations of the debt collection industry through self-help, and believe me that is so empowering. I ran into financial difficulties first 12 years ago when this sort of help didn't exist and was lucky in the end to recieve only two CCJs, which looking back on now, were entirely defective and could have been easily countered at the time if I had been better informed/advised.

 

So whilst it is vital to be as informed as much as possible, I can't stress enough how important it is to step back and assess your situation as it stands, alone [or as a group in this case], away from everyone else's. Repeat the mantra 'Keep It Simple!' as frequently as possible.

 

In our case, we have a dodgy claim situation from the outset. We know it, Sigma knows it. It is a mechanism to shake out some money from the uninformed. I strongly suspect if they have any asignment paperwork at all, it will be in bulk form, and in addition nothing else but an account number, an address and a balance. Work from that simple base point, and immediately apply pressure on the claimant to produce legally effective documentation.

 

In my case I'm going to send a CCA Request today tailored to the info in the POC in addition to telling them the account is already dispute with the OC with an exact date of dispute, and that the account shouldn't have been 'assigned' in the first place. Parallel to this I am going to acknowledge service and submit CPR regarding the documentation mentioned in their POC within the next few days. I will be prepared with a succinct defence revolving around the abject vagueness of the POC and the fact that I have not recieved a legally effective NOA, AS CLEARLY STATED IN STATUTE, and a CPUTR request ready for submission as and when the CCA request is defaulted on in a couple of weeks time, if it all goes to round two.

 

I personally don't intend to get bogged down in any more complicated considerations- at this stage- than that

[the_shadow]

Just a gentle reminder that small claims is balance of probabilities not certainties thus if they convince a judge that they indeed as part of their normal business practices send out NoA then a judge will deem it so without proof imho. YES you will have an appeal-able case but it costs time/money and dedication to appeal.

 

HOWEVER that said, if the amounts they are claiming are small, someone putting up a determined fight compared to the hapless chick newly hatched..... which one would you push ahead with further legal action against. They cannot hope to conclude all their pending claims.

 

S.

[SkemDosser]

Just a gentle reminder that small claims is balance of probabilities not certainties thus if they convince a judge that they indeed as part of their normal business practices send out NoA then a judge will deem it so without proof imho. YES you will have an appeal-able case but it costs time/money and dedication to appeal.

 

HOWEVER that said, if the amounts they are claiming are small, someone putting up a determined fight compared to the hapless chick newly hatched..... which one would you push ahead with further legal action against. They cannot hope to conclude all their pending claims.

 

S.

 

Yep point taken Shadow, if in the unlikely event it gets that far, it will be tracked to Small Claims but I'm pretty sure making them jump through hoops before then will scupper them

 

In fact it now looks certain those of us who do CPR on HL [sigma] will get a letter back offering a stay on condition of establishing a repayment plan. I now see that this is no doubt at the heart of their strategy. Myself, I will be telling them to put that offer in a very personal place,and move decisively for a strike out.

 

With regard to the assignment issue there is an interesting twist to this. Back in January Sigma cocked up big time and sent initial correspondence to the wrong people. Many people therefore have in their possession NoA's named and addressed to the wrong person entirely. These will no doubt be nestling very cosily in many peoples files

[hammyhound]

Thanks for advising folks, it really helps. I dont think they are going to respond to my CPR so will give it 3 weeks and use the defence that Andy had posted in a previous thread - short and sweet

 

 

1. Paragraph 1 is nether admitted or denied with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') the Claimant has yet to disclose any Agreement. Furthermore any claim for partial monies is averred Contrary to s35 of the county court Act 1984 s35 Division of causes of action.

 

2. Paragraph 2 is noted with regards to termination of the alleged contractual Agreement , the Defendant has no knowledge, therefore the Claimant is placed to strict proof there of.

 

3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

6. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

I will not get bogged down re: the NOA. I think this defence just says what needs to be said.

 

I have noticed on earlier threads that nothing seems to have happened after lodging the defence. Has anyone got as far as AQ stage.

 

Really itching to throw in the defence but will give them the opportunity and even send them a follow up just to show to the court if the case goes any further.

 

Thanks again folks you are really informative and hopefully people will understand more by reading and learning on these threads.

 

Hammy

[SkemDosser]

Sound strategy Hammy. That's a really good defence of Andy's- punchy and succinct. As you say once the CPR is in, keep chasing them in writing for reply. This means in the unlikely event it gets before a judge, you can say you did everything you reasonably could to get enough information from the claimant to resolve the matter without needing to have to go this far and take up court service time- and it'll put you head and shoulders above an already defensive claimant

 

Haven't seen it go as far as AQ on any other threads myself either; to be honest I personally very much doubt it will with any one. Once faced down, this technique of Sigma has very little in the way of legs.

[the_shadow]

IF you wish to push the CPR you could

 

a) advise them that if they dont comply you will apply to the court and seek costs of the application from them in the matter.

b) ring and seek their agreement to an extension to file the defence until they comply with the CPR request, if they dont agree threaten (a) if they do agree then its down to you to notify the court of the extended time to issue defence.

 

S.

[marshmallows]

IF you wish to push the CPR you could

 

a) advise them that if they dont comply you will apply to the court and seek costs of the application from them in the matter.

b) ring and seek their agreement to an extension to file the defence until they comply with the CPR request, if they dont agree threaten (a) if they do agree then its down to you to notify the court of the extended time to issue defence.

 

S.

 

 

Hi Shadow

 

I am posting in this thread as I hope it might help someone else.

 

I am wanting to send a letter to chas4 CPR, so that the judge can see I have treid my hardest for proof these guys legally have a cliam.

 

Is there a lega letter template that is to be used for this, or do I just send it as an everyday letter please?

[the_shadow]

Well it depends on the timescales whether a letter or a phone call is required. You have to give them a "reasonable" time to respond which is usually 7-14 days so if you are awaiting a chance to put a defence in its tight on times and you would in all honestly probably have to ring and state your case followed up in writing.

 

The letter should be kept simple but factual...i.e.

 

Dear Sir/Madam,

 

On xx/xx/2012 in response to a claim issued by yourselves I issued a CPR31.14 request, a copy of which I include, I also enclose proof of posting/receipt obtained from the Post Office website. To date this has yet to be responded to in any shape or form and as such I find you in default of the basic overarching goals of the CPR and Courts. I now require you to either respond immediately or if you are unable at this time, to agree to the extension of time to file a defence until such time as you comply with my legal CPR request.

 

I require an answer by xx/xx/xxxx, if none is forthcoming I reserve the right to apply direct to the court for an order to be made and would seek the costs of said application from yourselves. In any event this letter is being sent to the courts to be put on file to show clearly the disadvantage you and your client are attempting to put me at in regards this claim.

 

Regards

 

Something like that imho...

 

S.

[marshmallows]

Well it depends on the timescales whether a letter or a phone call is required. You have to give them a "reasonable" time to respond which is usually 7-14 days so if you are awaiting a chance to put a defence in its tight on times and you would in all honestly probably have to ring and state your case followed up in writing.

 

The letter should be kept simple but factual...i.e.

 

 

 

Something like that imho...

 

S.

 

 

I have submitted my defence, they are a week late with acknowledging my CPR.

[the_shadow]

Hmm not sure they'll ever comply then as you've already submitted...

 

The point of CPR31.14 is to obtain info to make a defence... if you cant defend without the info then you threaten them with an application to court, if they still dont comply then you issue a defence that states all of the attempts you have made to get the information you NEED to enter a fully particularised defence but you defend any point that you can so you have less chance with getting stung for costs.

 

Now you have issued a defence its sent to them and if they wish to proceed they pay a further fee to do so.

 

S.

 

EDIT: Do you have your own thread as this really should be posted on it rather than someone elses thread.

[hammyhound]

Well after a chase up of my request for the documents nothing has arrived so I have sent my defence by fax and recorded delivery. For some unknown reason MCOL website is saying I have the wrong claim number or password and has said that since I logged on so rather than waiting to see if it sorts itself out I have got my defence in.

 

We shall see what happens.

 

HH

[SkemDosser]

Yep that's what I've done Hammy [although I've had more success with MCOL:)]

 

Personally I see no point in faffing around allowing HL extra time to respond to the CPR requests, because a] they should have this information at their fingertips seeing as they have initiated court action and b] I see no reason giving up an ounce of my initiative as a defendant to the claimant, effectively allowing them to stall things while I wait for what are very, very likely documents they do not have nor probably have access to any more.

 

So a defence is in, and one can be drafted easily that addresses the lack of information forthcoming from the cpr requests [Andy's is a good example]. As I've said on another thread, these particular claims will be faced down with procedure and pressure from us, as defendants, on a claimant we must aim to at all times to keep on the backfoot. A submitted defence for example focuses a claimant's mind- they have a period of time to decide whether to fork out more cash to continue, or throw in their hand. And pressure will work because they are a paper tiger, and once the resistance gets too much, they will give up the ghost and move on to [unfortunately] easier prey.

[hammyhound]

Well an update today I received in the post:-

 

A letter saying they are prepared not to pursue the claim and allow the claim to be stayed if I enter into a repayment plan:lol:

 

A copy of their original assignment letter but say that for control purposes of Marks & Spencer we are unable to provide their original assignment letter and have enclosed a reconstruction of the notice of the assignment letter - what - they bloody typed the thing and put it in their envelope.

 

A copy of the original application form no terms or conditions.

 

And finally the best default notice I have seen in a while - a blank piece of paper of a template default notice not showing anything but This default notice served on you relates to your account number T13 a £12 charge will be debited to your account

 

You have not paid instalments blah blah you are T02 in arrears and are in breach of your agreement.

 

In order to remedy the breach, you may the total arrears of T02 before T08.

 

Further action referred to above

 

On or after the date shown above the company will demand the full outstanding balance on your account

 

Outstanding balance including interest to date H25

 

HH rolling around the floor at this point.

 

No statements.

 

What are my options - do I ask them to discontinue and wait and see or just go for the jugular and make an application to the court.

 

I am sure others will receive similar in the next few days

 

HH

[the_shadow]

Ok, they've sent something thats good, if its not enough to base a defence on then you can apply for a strike out but as they've supplied what they think is the evidence needed to proceed to court I doubt you'll win that strike out and it'll just progress to full hearing and costs.

 

If you think the information isnt sufficient then contact them and request and extension to filing a defence until they do provide the information you requested, with the timescales this is likely to require a phone call to their solicitors however.

 

The alternative is perhaps a letter offering them the chance to discontinue and you'll not persue them for costs, each side to bear their own costs. You cant apply for costs unless they discontinue after you have filed a defence but its a way of bluffing them.

 

Comes down to brinkmanship and bluff now, if you think the evidence they have is sufficient to prove their case or not.

 

S.

[hammyhound]

Shadow defence filed last week. I sent a chase up letter for the request of the documents to no avail. Their letter confirms receipt of the defence.

[the_shadow]

In that case if they discontinue you would be entitled to claim costs from them.

 

So you have a choice, either go into a repayment plan with them or bluff them out..

 

"Dear Sir/Madam,

 

I am in receipt of your letter dated xx/xx/xxxx.

 

Please take this letter as my rejection of your offer of a repayment plan, I am confident in my defence to your spurious claim. However I am willing to make a counter offer to yourselves, I can confirm I will not seek costs from you should you discontinue this claim."

 

S.

[hammyhound]

Has anyone received anything further from HL solicitors after receiving "we will stay the action so a replacement plan can be set up".

 

Everything seems to have gone quiet.

 

I imagine this will drag on for months/years/a lifetime/eternity

[vic synex]

Not a peep!

 

My defence was submitted early June, got a letter a few days after saying they were disappointed that I'd not responded to their claim and that's it!

 

Was thinking of applying for a strike out but I've got a feeling it won't go any further anyway.

[marshmallows]

They have issued two summons against me. One where I got some documents, saying they would stay based on a repayment plan, which I received four weeks ago and have heard nothing since.

 

The second summons was for a credit card which I received about mid July, requested CPR on 7th August and have not heard a dickie bird since.

[DonkeyB]

Have you entered defences? Don’t miss the deadline, even for a holding defence, otherwise they could be sneaky and go for default judgment.