Court Claim received - cabot - old halifax credit card***Resolved by Tomlin Order***

[babymoll]

Thank you Andy.

 

Will download and drop in to my local court tomorrow as they sent their AQ's to my local court where set aside hearing was due to be heard.

 

No there was no mention of re submitting defence or timetable of what is now expected just a copy of consent order,that consent order was approved and that set aside was to be removed from register of judgments.

 

Do I send a copy of DQ's to claimant or will the court?

 

Do I also have to pay a fee for the DQ's?

 

babymoll

[babymoll]

Another question as I have to submit AQ'S tomorrow is it advisable to tick yes to mediation?

 

Claimant solicitors have ticked yes even though I can't see a DCA being reasonable to deal with ?

 

Unsure

babymoll

[AndyOrch]

Thank you Andy.

 

Will download and drop in to my local court tomorrow as they sent their AQ's to my local court where set aside hearing was due to be heard.

 

No there was no mention of re submitting defence or timetable of what is now expected just a copy of consent order,that consent order was approved and that set aside was to be removed from register of judgments.

 

Do I send a copy of DQ's to claimant or will the court? Yes and no they dont

 

Do I also have to pay a fee for the DQ's? No only the Claimant

 

babymoll

 

Another question as I have to submit AQ'S tomorrow is it advisable to tick yes to mediation? Yes unless its not your debt or it has been claimed in error

 

Claimant solicitors have ticked yes even though I can't see a DCA being reasonable to deal with ?

 

Unsure

babymoll

 

Baby have you retained the original N1 (Summons) with the particulars of claim?

 

Regards

 

Andy

[babymoll]

Thank you Andy.

 

Yes I have the original N1. Is this relevant now?

 

babymoll

[AndyOrch]

Thank you Andy.

 

Yes I have the original N1. Is this relevant now?

 

babymoll

 

Yes if you have to re submit a defence or refer to it...I assume your original will now stand though.

[babymoll]

OK.

 

Will drop completed form to court tomorrow and email claimants solicitors a copy.

 

Will keep you posted.

 

Thanks again Andy for everything!

 

babymoll

[babymoll]

Hi Andy,

 

Your Urgent advice needed!

I have been away over the last five days and arrived back home today as I knew I had the DQ's to file and deadline was for filing today. I dropped off my DQ's by hand to the court en route home.

 

Whilst away,I had asked a family member to open and read out to me over the phone any letters relating to court correspondence. On Saturday last, a letter had arrived and my sister read it out over the phone to me. It was the set aside granted and comprised of 4 pages. I listened to details of each page over the phone and when it came to reading out final page, which was the consent order which I had signed, I assumed it was just copy of the original I had signed so said 'don't worry I know that page and don't bother reading out'.

To my complete dismay today, upon seeing sight of the four pages, I noticed that on the last page, which I had dismissed as being just a copy of the original, the Judge had added in his own handwriting the following "defendant to file and service defence by 4pm 30/7.

Yes! I saw this at 2.30pm on 30/7. I immediately tried calling the court but no one answered.

I then had to locate my laptop which was elsewhere which had my defence on it and print it and get it back to the court as requested. I also had an urgent medical doctors appointment at 3.40pm. (Yes! it was that kind of day!).

So, I managed to get to Drs then print out defence and got to the court for 4.30pm due to traffic and running late at Docs. Upon arrival, I posted in the internal court postbox, however it says on that post box that documents received after 4pm will be date stamped as next day.

I am now panicking that my defence will be void and that judge may dismiss my defence due to not being filed by 4pm or claimant goes for judgement based on my being half an hour late!

 

 

The postmark on the envelope from court is dated the 23rd of July and it was not received by my sister until the 26th if this holds any relevance also offering me four days to refile defence.

 

regards

babymoll

[AndyOrch]

I would think they will allow a little leniency.... after they are running late most of the time.Email a copy of the defence to the Claimant also...preferably tonight.

[babymoll]

I really really hope so.

 

I emailed claimant a copy this evening and they acknowledged and thanked me.

 

So hopefully court will take the view that DQ's were in on time and that there may have been a delay with defence due to short notice for refiling.

 

Will keep an eagle eye on any further post and update you.

 

best regards

babymoll

[babymoll]

Hi all,

 

Well,I have heard from the court and they have ordered-

 

1 The claimant file and serve detailed POC's which must exhibit copies of docs referred to by.......09/13. I now have these.

 

2.Defendant file and serve amended defence by .....09/13. I have a limited time to file this.

 

So claimant has completed a 2 page POC with no mention of a DN despite the mention of a DN in their original POC!!

 

There are exhibits attached of

Illegible cca,copies of statements,Notice of Assignment,Letter Before Action,copy of Account Sale Agreement,Claimant case history relating to account and Statement of Account.

 

There is an excel style one line entry on a doc that refers to date defaulted which states a conflicting date to what I have on my DN!!

 

The other cells on the line are filled with figures eg load balance,load date,account open date,write off balance,write off date,last payment amount and last payment date.

 

I would really appreciate any advice on how to amend my defence as I have only until mid Sept.

 

regards,

babymoll

[babymoll]

Just realised that date the OC defaulted me can of course be different to the dates on the DN.

 

Is it usual for it to be some months after the DN?

[citizenB]

Just realised that date the OC defaulted me can of course be different to the dates on the DN.

 

Is it usual for it to be some months after the DN?

 

 

The Information Commissioner suggests that the DN marker should be placed no later than 6 months after the cause of action. Just having a read back over your thread to see what is going on

[citizenB]

The Default Notice does not give the statutory/mandatory time to remedy the breach. So you would need to mention this.

 

The document in post 13 - is that all they sent? I cant see any prescribed terms or terms and conditions.

 

They claim in the DN that you have breached clause 2.2. If you have terms and conditions, what does clause 2.2 say ?

[citizenB]

Can you depersonalise and scan in their Particulars of claim for us to see please

[babymoll]

Hi CitizenB,

 

Thankyou so much for having a look at my thread. I really appreciate it.

 

Re: the illegible cca,that was the only page they sent but they sent a set of separate photocopied terms and conditions.

 

The default notice and date defaulted was within 6 months.

 

The 2.2 clause is

 

We will send you a monthly statement(including making the information available to you on a secure webpage if you receive statements in this way),unless there have been no payments into or out of the account during that period and the balance is nil. Each month, you must repay at least 2.25% of the amount you owe us, or £5, whichever is more. If the amount you owe is less than £5 you must pay the full amount. Your statement will show a date by which you must make this months payment.

 

Will post up revamped POC's later.

 

best regards

babymoll

[babymoll]

These are the Claimant's new POC's drafted by their representatives.

 

1.On .../.../2003,the Defendant opened a credit card with....OC,acct no....,claimant no....("the account").

OC has provided a copy of the Consumer Credit Agreement relating to the account and signed by the defendant which is exhibited herewith at "A".Copies of the original and latest Terms and Conditions provided by OC as relating to the account are exhibited herewith at "B".

 

2.OC has provided copies of statements in relation to the defendants account covering the period from ..../2007 and /2011.They are exhibited herewith at "C" and the outstanding balance set out in the latter statement is in the sum of £......

 

3.The claimant purchased the debt from ...OC ... on the ../2011. by way of legal assignment under section 136 of the Law of Property Act 1925.Exhibited at "D" is a representation of the notice of Assignment sent to the defendant's last known place of abode or business,being............................... by standard post on the /../2011 or shortly thereafter.

Claimant is licensed by OC to send such Notices of Assignment in relation to all such debts assigned to the Claimant

and the text within the Notice is stored electronically by Claimant and reproduced for evidential purposes.The creation of the Notice of Assignment is recorded at line "12" of the Claimant Case History referred to in paragraph 6 below.

 

4.Exhibited herewith at "E" is a representation of the Claimant's 'Letter Before Action' which also give notice of the assignment.The Claimant's representatives sent the Letter Before Action to the Defendant on the 7th December 2012 to which no response was forthcoming from the Defendant.

 

5.A redacted copy of the Account Sale Agreement made between the Claimant and the OC dated ../../2011 is exhibited herewith at "F". The copy is redacted because it contains sensitive commercial information not relevant to the proceedings.An extract of the compact disc database of all accounts that were subject of the Assignment as provided by the Assignor,is exhibited herewith at "G".A compact disc is used to itemise each account which is subject to the assignment because portfolios of debt subject to such Agreements will generally include multitudinous accounts.This is referred to as the "Raw Data" and confirms,among other things,the date the account was opened ,the account number,the last payment date and amount,the Defendant's name and address and the outstanding account balance of £........

 

6.There is exhibited at "H" a copy of the OC case history in relation to the Defendant's account.

It logs correspondence written or otherwise between OC and the Defendant from the date the debt was purchased by the Claimant until instructions to litigate were prepared.

 

7.The last payment made to the Account was on ../../2009 in the sum of and a copy of Claimant's statement of Account covering the period from the date of purchase of the debt to the date of issue is exhibited herewith at"I".

 

The Claimant claims the balance outstanding in relation to this account of £....... as pleaded above together with interest under Section 69 of the County Courts Act 1984 from the date of issue to the date of payment or judgment,whichever is sooner at the rate of 8% per annum, £1.** per day together with costs.

 

 

regards

babymoll

[citizenB]

Righto, well they appear to have used a lot of words, but actually haven't said very much at all, have they ?

 

andyorch is not online at the moment, so I will leave a message for him to look in on you asap which will probably be tomorrow now.

 

when do you need to get your amended defence in by ?

[babymoll]

Hi CitizenB,

 

Thanks for looking in.

Yes,I was thinking the same and no mention of the DN,despite mentioning it in the original POC's.

 

I have a week to submit an Amended defence.

 

regards

babymoll

[babymoll]

Hi Andy,

 

Could you please have a look at claimant's new POC's?

I'd be extremely grateful for your opinion and advice

on drafting my Amended Defence which has to be submitted early next week.

 

regards

babymoll

[AndyOrch]

Hi babymoll

 

 

Is this an amended defence or your first...I recall that your initial one was not accepted/too late?

 

RE their new Particulars of Claim...a desperate attempt to push the balance of probabilities by providing everything in connection with your agreement except............

 

 

The actual breach itself...no reference to a breach no reference to a Default Notice and as you are aware Failure to serve a valid Default Notice precludes the claimant from enforcing the agreement pursuant to s.87(1) of the CCA 1974.

 

Further more no reference to a Arrears Notice ( CCA 2006/sections 86A - C of CCA 1974.) or Default Sum Notice ( section 12 of the CCA 2006 and section 86E of the CCA 1974) There is the usual provision for non-enforcement during non-compliance.

 

Regards

 

Andy

[babymoll]

Hi babymoll

 

 

Is this an amended defence or your first...I recall that your initial one was not accepted/too late?

 

RE their new Particulars of Claim...a desperate attempt to push the balance of probabilities by providing everything in connection with your agreement except............

 

 

The actual breach itself...no reference to a breach no reference to a Default Notice and as you are aware Failure to serve a valid Default Notice precludes the claimant from enforcing the agreement pursuant to s.87(1) of the CCA 1974.

 

Further more no reference to a Arrears Notice ( CCA 2006/sections 86A - C of CCA 1974.) or Default Sum Notice ( section 12 of the CCA 2006 and section 86E of the CCA 1974) There is the usual provision for non-enforcement during non-compliance.

 

Regards

 

Andy

Thanks for responding Andy.

 

First defence was deemed too late because Claimants representatives went for judgment prematurely.

 

I then applied for Set aside and Claimant responded

with a Consent order that judgment be set aside and that both parties were to file DQ's.

 

Local court granted set aside and

then requested DQ's from both parties and for me to file defence.

I did this.

 

After a few weeks my local court then requested the Claimant to provided detailed POC's

And Defendant to file amended defence.

 

Regards,

babymoll

[AndyOrch]

Right you are...well as per my post above they are the main points which will form your defence...if you could bring forward your fist defence because although it was too late the claimant did see it.

Did you refer to the above points within that defence.....strange that they seem to distancing themselves from the breach/Default notice.

[babymoll]

Here are first POC'S and first defence

 

 

 

1.Claimant purchased a debt from the following(current balance is also shown) halifax £6,xxx

 

2.These debts are regulated by the Consumer credit Act 1974(the Act) Default notice(s) were issued in accordance with section 87(1) of the Act but defendant has Failed to pay the sum(s) due.

 

3.The claimant therefore claims the sum of 6,xxx plus costs.

 

Claimant also claims statutory interest pursuant to s.69 of the county court Act 1984

from date of issue to date of judgement,or sooner payment.

 

 

 

 

 

 

 

 

1. Paragraph 1 is noted with no admittance.The Claimant has failed to even refer to an account number. It is accepted that there is a disputed debt extending from 2009 with the original Creditor Halifax who remain in default of a section 78 request by way of providing an illegible copy of an application form.

 

2. Paragraph 1 is accepted that the debt is regulated by the CCA1974 but it is denied that a valid Default Notice was ever served in accordance with the CCA1974.That being a fact Halifax continued to add interest and unfair penalty charges with the full knowledge of the dispute and their failure to comply with my section 78 request.

 

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 provide a legible copy; 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, 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 Notwithstanding the above it I will asseverate that under sec 78 Consumer Credit Act 1974 and also sec 62 & 63 Consumer Credit Act 1974 as adequate copies of the agreement were not provided, that the agreement provided is illegible and therefore by virtue of the act unenforceable

 

7.And also unenforceable by virtue of sec 87 Consumer Credit Act 1974 as the Default notice failed to allow sufficient time to remedy the breach.

 

8.And also failure to provide an annual Notice of Arrears ...pre and post assignment which also prevents the claimant from enforcement CCA2006 amendments.

 

9..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.

 

 

 

So,do you think this defence need much amending as the DN and arrears notice are covered or should they be expanded on?

And would I also need to mention that there is no mention of the actual breach itself as you state above?

 

regards

babymoll

[AndyOrch]

Thats fine Baby you can incorporate post #95 into the defence.Subject to what has been disclosed you may have to edit 3.

 

" 2.These debts are regulated by the Consumer credit Act 1974(the Act) "

 

Have a go and I will tweak the final draft for submission.

 

Regards

 

Andy

[babymoll]

Ok-here we are again Andy.

 

Reminder of their new detailed POC'S-

 

1.On .../.../2003,the Defendant opened a credit card with....OC,acct no....,claimant no....("the account").

OC has provided a copy of the Consumer Credit Agreement relating to the account and signed by the defendant which is exhibited herewith at "A".Copies of the original and latest Terms and Conditions provided by OC as relating to the account are exhibited herewith at "B".

 

2.OC has provided copies of statements in relation to the defendants account covering the period from ..../2007 and /2011.They are exhibited herewith at "C" and the outstanding balance set out in the latter statement is in the sum of £......

 

3.The claimant purchased the debt from ...OC ... on the ../2011. by way of legal assignment under section 136 of the Law of Property Act 1925.Exhibited at "D" is a representation of the notice of Assignment sent to the defendant's last known place of abode or business,being........... .................... by standard post on the /../2011 or shortly thereafter.

Claimant is licensed by OC to send such Notices of Assignment in relation to all such debts assigned to the Claimant

and the text within the Notice is stored electronically by Claimant and reproduced for evidential purposes.The creation of the Notice of Assignment is recorded at line "12" of the Claimant Case History referred to in paragraph 6 below.

 

4.Exhibited herewith at "E" is a representation of the Claimant's 'letter before action' which also give notice of the assignment.The Claimant's representatives sent the Letter Before Action to the Defendant on the 7th December 2012 to which no response was forthcoming from the Defendant.

 

5.A redacted copy of the Account Sale Agreement made between the Claimant and the OC dated ../../2011 is exhibited herewith at "F". The copy is redacted because it contains sensitive commercial information not relevant to the proceedings.An extract of the compact disc database of all accounts that were subject of the Assignment as provided by the Assignor,is exhibited herewith at "G".A compact disc is used to itemise each account which is subject to the assignment because portfolios of debt subject to such Agreements will generally include multitudinous accounts.This is referred to as the "Raw Data" and confirms,among other things,the date the account was opened ,the account number,the last payment date and amount,the Defendant's name and address and the outstanding account balance of £........

 

6.There is exhibited at "H" a copy of the OC case history in relation to the Defendant's account.

It logs correspondence written or otherwise between OC and the Defendant from the date the debt was purchased by the Claimant until instructions to litigate were prepared.

 

7.The last payment made to the Account was on ../../2009 in the sum of and a copy of Claimant's statement of Account covering the period from the date of purchase of the debt to the date of issue is exhibited herewith at"I".

 

The Claimant claims the balance outstanding in relation to this account of £....... as pleaded above together with interest under Section 69 of the County Courts Act 1984 from the date of issue to the date of payment or judgment,whichever is sooner at the rate of 8% per annum, £1.** per day together with costs.

Amended Defence-1st draft

 

1. Paragraph 1 is noted with no admittance. It is accepted that there is a disputed debt extending from 2009 with the original Creditor ..... who remain in default of a section 78 request by way of providing an illegible copy of an application form.

The application form is difficult to read and illegible and as such would make the agreement unenforceable in a court of law as specified in The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

2.It is denied that a valid Default Notice was ever served in accordance with the CCA1974.That being a fact that ....... continued to add interest and unfair penalty charges with the full knowledge of the dispute and their failure to comply with my section 78 request.

 

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 provide a legible copy; 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. The claimant has failed to indicate what breach has actually occured.

 

 

6 Notwithstanding the above, I will asseverate that under sec 78 Consumer Credit Act 1974 and also sec 62 & 63 Consumer Credit Act 1974 as adequate copies of the agreement were not provided, that the agreement provided is illegible and therefore by virtue of the act unenforceable

 

7.And also unenforceable by virtue of sec 87 Consumer Credit Act 1974 as the Default notice (which has not been provided by the Claimant nor even mentioned in their detailed Particulars) failed to allow sufficient time to remedy the breach. Failure to serve a valid Default Notice precludes the claimant from enforcing the agreement pursuant to s.87(1) of the CCA 1974.

 

8.And also failure to provide an annual Notice of Arrears ...pre and post assignment which also prevents the claimant from enforcement CCA2006 amendments.

9.Failure also to provide Default Sum Notice ( section 12 of the CCA 2006 and section 86E of the CCA 1974).

 

10..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.

 

Andy,I have attempted to remove what I'm thinking are the irrelevant points- e.g No 5. on my original defence as they provided a NOA.

Could do with your expert assistance though.

 

Anything else that should be included?

 

Should I remove 3c and 4?

 

They didn't send all statements for the account(approx 3- 4 yrs worth were missing)-is this relevant or not?

 

Also should I send copy of original DN to the court/claimant?

 

regards

babymoll