lowell/kays/shop direct - SD - set aside - but now claimform!!

[babydoll0141917]

CD is talking about ordering on line..They give you options of clicking BNPL over 20 wks or 52 wks..Which ever you click ..Is acceptable as an agreement ..thats what I assume CD means

[42man]

This is how to fill out 6.4

 

For (a) fill in your name and address

 

The section that states attend before the Registrar leave blank. This will get filled in by the court.

 

For (b)

on the hearing of an application by (b) (insert your name)

 

An application for an order that the statutory demand dated (insert date on the SD that you received from (CREDITORS NAME) be set aside

 

For ©

The grounds on which the applicant claims to be entitled to the order are set out in the witness statement of the applicant sworn on (insert the date that you hand the forms into the court).

 

For (d)

The names and addresses of the persons upon whom this application should be served are:

(d) (insert name and address of CREDITOR/SOLICITOR)

 

For (e)

The applicant’s address for service is: (e) (insert your name and address)

Cross out where it states (Solicitor for the) and just leave the word Applicant and sign and date the form.

[42man]

You need to take the 6.4 (set aside) and 6.5 (witness statement) along with any accompanying CCA requests or letters you will be referring to in your witness statement, and you will need to take the original demand with you too...make sure you keep copies of everything too. You can take them to your nearest court to you that handle bankruptcies / insolvency cases you can check here (court finder) - http://hmctscourtfinder.justice.gov.uk/HMCTS/

 

If you post them then make sure you send them recorded delivery...

[Crazy Diamond]

CD is talking about ordering on line..They give you options of clicking BNPL over 20 wks or 52 wks..Which ever you click ..Is acceptable as an agreement ..thats what I assume CD means

 

That's right. In the early days BI (Before Internet, lol), you had to phone or post your orders, and it is safe to say that pretty much any order made then would have been non-enforceable due to lack of paperwork. With the tick box system online now, it's closed some of the gaps, but as I said not fully as if the order is changed in any way (exchange, return, refund etc) then the terms under which you ticked originally are no longer the same.

[sinkinship]

thmk you all so much

 

i have to admit this is pretty intimidating

 

I will use your thread link, thank you 42 man

 

do i include on my witness statement the copy of the cca i received and my reason for dispute or do i put them to strict proof of everything?

 

this is a copy of the 2008 cca they began to forward me with each order

Edited February 14, 2013 by sinkinship
attatchments

[sinkinship]

Hi

I just wanted to update this,

 

 

I got so stressed and worried over this that I searched online and found a solicitor that took it on with a no win no fee.

 

 

I got the SD set aside and lowlife had to pay all costs which were nice and juicy.

 

 

Also I'd like to add I never ordered goods with the intent to not pay,

but when I got in over my head as to speak,

I got into financial difficulties and had no help what so ever with the OC.

 

 

Hence finding this fantastic website with fabulous people who devote their time to help others.

 

 

SD is not a form of debt collection that should be used until all other methods have been exhausted.

 

 

I don't even want to think where I'd be if I hadn't found CAG!

 

 

Thank you everyone who shared their opinions.

[thunderballs]

Hi

I just wanted to update this,

 

 

I got so stressed and worried over this that I searched online and found a solicitor that took it on with a no win no fee.

 

 

I got the SD set aside and lowlife had to pay all costs which were nice and juicy.

 

 

Also I'd like to add I never ordered goods with the intent to not pay,

but when I got in over my head as to speak,

I got into financial difficulties and had no help what so ever with the OC.

 

 

Hence finding this fantastic website with fabulous people who devote their time to help others.

 

 

SD is not a form of debt collection that should be used until all other methods have been exhausted.

 

 

I don't even want to think where I'd be if I hadn't found CAG!

 

 

Thank you everyone who shared their opinions.

 

It's worth pointing out that First Credit got warned by the OFT a couple of years ago for frivolous use of SDs.

 

Lowell would also be well aware of that, and so it might be worth contacting the FCA and pointing his out (who took over the OFT's remit last year).

[AndyOrch]

Well done SS and many thanks for the update.....its so helpful to other posters to see a conclusion on a thread...rather than take the advice and disappear.

 

Thread title amended to reflect the outcome.

 

Regards

 

Andy

[sinkinship]

Yes Andy I understand that, i'v read sooooo many threads and soooo many with no conclusion which just leaves you lost. I'm also going to look into contacting the FCA thunderballs.

Many thanks.

[sinkinship]

This case isn't over yet! I've been issued with a court claim now and I'll be submitting my defence In the next day or so, il update how I get on

[dx100uk]

please fill this link out and post the results here

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**(1-Viewing)-nbsp

 

 

dx

[sinkinship]

issue date is 10th dec ......... I have to get my defence in for Monday the 12th?

 

Particulars of claim

the claimant's claim is for the sum of 6,***.**

being monies due from the defendant to the claimant under a mail order agreement

regulated by the consumer credit act 1974

between the defendant and shop direct financial company limited under account reference****** and

 

 

assigned to the claimant on**/**/2009 notice of which has been given to the defendant.

 

the defendant failed to maintain the contractual payment under the terms of the agreement and

 

 

a default notice has been served and not complied with.

 

 

This claim also includes statutory interest persuant to section 69 of the county courts act 1984

at a rate of 8.00% per annum (a daily rate of 1.05 from the date of the assignment of the agreement to 9/10/2014 being an amount of 702.00

 

I sent a CPR request on the 17th dec recorded delivery to BWLegals and another cca request to lowells, recorded too.

 

Account opened in 96 approx. last payment made March 09. Default notice dated dec 09

 

OC insisted on full payments.

 

Of ignored my dispute over cca and forwarded to a couple of DCA lastly lowells.

 

Received the cancelled £999 cca x5

 

Have statement to prove goods never arrived and were damaged in cargo.

 

I received notice of assignment whilst I had dispute with OC over CCA non comply.

 

That's pretty much what I have to work with:-(

Edited January 7, 2015 by sinkinship
Punctuation :/

[sinkinship]

If anybody has any help I will be doing my defence today

[AndyOrch]

Heres a starter...you will have to add the details of your CCA request and that they have previously made a Stat demand which was set a side and the reasons why...post your final draft and ill check it over.

 

Defence

 

 

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

 

2.Paragraph 1 is noted. I have had an agreement in the past with Shop Direct but any alleged balance is and remains in dispute for faulty goods/services.

 

 

3.Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served over 3 years ago.

 

4.It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore 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;

 

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

 

6.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.

 

 

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

 

Regards

 

Andy

[sinkinship]

Thank you:wave:

I'm going through all the paper work now.

The cca for £999. Has a different account number than the claim form. Is that an important factor? I'm thinking it must be?

 

The account was opened in 1993 under the account numb on the cca. The cca clearly states that I had 14 days to cancel. On the statement it shows that the item was returned. So surely that cca is cancelled and I have statements showing that the balance was zero for a few years ahead too.

The court papers are for £5,800 with a different account number?

This is what I'm trying to put into words now with a toddler for distraction!

 

Should I be asking for strict proof?

[sinkinship]

I have the notice of assignment for lowells from 2009 from the OC but iv still recieved nothing under the CPR sent 17th dec to BW legal

[sinkinship]

So I be asking for strict proof of the cca for the account on claim form? Once iv stated the cca of 2005 was cancelled ?

[AndyOrch]

Of course it must be the correct agreement but that is a side issue your main point of defence would be ....

 

" Have statement to prove goods never arrived and were damaged in cargo."

 

A court wont make anyone pay a debt that they are not liable for.

 

Andy

[sinkinship]

ok I see what you are saying, thank you

2. Paragraph 1 is noted. I have had an agreement in the past with Shop Direct but any alleged balance is for a returned item. The item balance as shown was refunded on statement number 29. The agreement states ‘Your right to cancel within fourteen days, starting with the day after you signed it.’ Statement 29 confirms the receipt of the returned item by Shop Direct, therefore the agreement was cancelled as of 13/05/2005.

along the lines of that?

[AndyOrch]

Yes just a few amendments...refresh your page.

[sinkinship]

forget that, the agreement states 14 days to cancel but the item was due for delivery in April but the item was damaged in cargo showing on the statement on 13/05/05 a month after I signed the agreement.

 

 

2. Paragraph 1 is noted. I have had an agreement in the past with Shop Direct but any alleged balance was for a returned item. The balance was shown as refunded on statement 29 and confirms receipt by Shop Direct of the returned item.

 

 

will that be enough information along with the proof?

 

 

I'm puzzled and trying to find out where will I include info on the SD set a side? I'm not sure where to fit that info into my defence?

Edited January 8, 2015 by sinkinship
oops past tense needed

[sinkinship]

Defence

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

2. Paragraph 1 is noted. I have had an agreement in the past with Shop Direct but any alleged balance was for a returned item. The balance was shown as refunded on statement 29 and confirms receipt by Shop Direct of the returned item. The credit agreement was cancelled.

3. Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served over 3 years ago.

4. It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14 on 17th December 2014 by recorded delivery. Therefore 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;

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

6. 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.

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

I'm not sure where to fit the statutory demand set aside info into the defence also should I include information on the initial or any CCA request?

[AndyOrch]

Defence

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted. I have had an agreement in the past with Shop Direct but any alleged balance was for a returned item. The balance was shown as refunded on statement 29 and confirms receipt by Shop Direct of the returned item. The credit agreement was cancelled.

If I may also bring to the courts attention that the claimant has already issued a statuary demand dated xxxxxx which was set a side on xxxxxxxx in the xxxx County Court (insert a brief reason why the DJ set it aside)

 

3. Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served over 3 years ago.

 

4. It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14 on 17th December 2014 by recorded delivery. The claimant is also in default of my section 78 request dated xxxxxx

 

Therefore the Claimant is put to strict proof to:

 

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

 

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

 

6. On the alternative, as the Claimant is an alleged 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.

 

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

[sinkinship]

yes I can see how that slots in and flows accordingly like it was there to begin with!

You make it look so easy and it's so not.

thank you

[AndyOrch]

yes I can see how that slots in and flows accordingly like it was there to begin with!

You make it look so easy and it's so not.

thank you

 

Well there is certain amount of skill required:wink:

 

Edit to suit and get it submitted through MCOL

 

Andy