Optima legal/Bank of America court claim received - pls help

[mike331]

Hi everyone,

 

I received a claim form from northampton CC yesterday (dated 1st Nov) and would be really grateful to get some advise on how to proceed. I had some financial issues a few years ago and debt spiralled out of control, loads of late charges and interest applied via various creditors when I was struggling to keep my head above water and I just buried my head in the sand. I've managed to sort out most of the debt over last few years but haven't had any dealings with capquest to date, I am trying to move things forward and really need to avoid getting a ccj from this after so many years.

 

The claimant is Capquest for amount over 6k for an old cc (Bank of America assuming MBNA). SOLS are Optima legal. I've check the CRA and there is a default registered by Capquest (default date 4/09). I have no paper work at all for this so can't at this stage confirm last time any details/when last payment was made and amount in charges, although I do know that there were loads of charges/admin fees/interest etc applied to the account with took me over my credit limit and further and further into debt, I don't think I made a payment for some time maybe 5 years + and I haven't been in correspondence with them at all. The amount they are claiming doesn't seem right.

 

I received a letter from Optima legal in mid Oct attached which was threatening legal action, it was worrying but didn't read like a last letter before action. Then received the court papers yesterday nothing else in between (I've attached both letters minus personal details for ref).

 

I'm planning to do the AOS online and send a CPR 31.14 request to the SOLS giving them 7 days to respond to see what they come back with. In the CPR request I was going to ask for true copies of the following

 

- Letter of credit agreement

- NOA

- Default notice

- Full statement of account - itemising all interest & charges from the commencement of the alleged debt

 

Any advise on the above would be gratefully received? Or anyone who has had experience with this lot would be good to hear. Supporting docs attached.

 

Many thanks

[AndyOrch]

Welcome Mike...you seem to have a good understanding of the process thus far.

 

With your CPR request I would also advocate you send this to the claimant

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387435-CCA-Request-Consumer-Credit-Act-1974(2-Viewing)-nbsp

 

Send separate and include a £1 PO and send \Rec Delivery...print your name.It is important to head the request " I do not acknowledge any debt with your company "

 

Regards

 

Andy

[mike331]

Thanks for the quick response Andy. I'll get these letters drafted and sent off ASAP and see what they come back with.

 

Just one thing, on the CPR request should I ask for a copy of the 'signed' credit agreement?

 

Mike

[AndyOrch]

You can but they will more than likley not respond to your CPR request...they are not compelled its only a civil request hence my link above for the agreement......that request they either comply or they cant enforce.

 

 

Andy

[mike331]

Useful to know, thanks Andy. I'll post up any updates.

 

Mike

[mike331]

Hi there,

 

I just wanted to post up an update. I sent the CCA request to the claimant (Capquest), and CPR request to the SOLs (recorded) which we're both delivered on 11th Nov, I haven't received a reply to either request as yet.

 

Defence is due in mid next week and wanted to start thinking about drafting this up in the next couple of days. Any advice on best approach? Shall I use some kind of adapted embarrassed defence stating no response to CCA and CPR request so I'm unable to respond to the claim? It would be good to know what my position is, as it stands?

 

Any advice, greatly appreciated.

 

Mike

[AndyOrch]

Yes that would be advisable...take a look at a few that I have drafted for other posters Mike.

 

Regards

 

Andy

[mike331]

Yes that would be advisable...take a look at a few that I have drafted for other posters Mike.

 

Regards

 

Andy

 

Thanks Andy,

 

I've drafted a defence referencing and adapting some recent embarrassed defences you have posted (inputted on) on CAG. The POC in the claim form I received wasn't paragraphed as such more like one paragraph, would you advise that I include the POC in my defence as below to refer to in my line items, or just remove reference to paragraphs in my defence? Or is this not an issue? I added a paragraph in my defence to the request I made to the claimant under s.78 of the Consumer Credit Act 1974. The claimant received this 14 (working) days ago and has not responded. Do you think I should mention about the claimant not being able to enforce the debt as it is in dispute or are these sorts of things implied anyway?

 

Your feedback would be greatly appreciated. thanks again Andy.

 

Mike

 

Particulars of Claim reads as follow:

 

1)The claimant's claim is in respect of a credit agreement regulated by the Consumer Credit Act 1974 whereby Bank of America

Original Creditor provided the defendant with a credit card. In return the defendant agreed to pay at least the minimum payment given in the statement.

 

2) A default notice was served on the defendant which has expired and upon which the defendant has failed to comply with.

 

3) A Notice of assignment has been sent to the defendant notifying them that this debt has been assigned to the claimant. The claimant therefore claims the sum of 6,xxx.xx plus costs. The claimant has complied with Sections III and IV of the Practise Direction on Pre-Action Conduct.

 

***Defence***

 

1. Paragraph 1 is neither admitted nor denied with regards to the Defendant entering in to an agreement referred to in the Particulars of Claim ('the Agreement') with Bank of America. 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;

 

 

2. Paragraph 2 is denied with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach.

 

3. It is denied with regards to the Defendant owing any monies to or that the claimant/original creditor served a valid Notice of Assignment 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 icon 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. On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx for a copy of the credit agreement, default notice, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim. This was delivered by recorded delivery to the claimant on xxxxxxx. The claimant has yet to comply.

 

7. On receipt of the claim form the Defendant sent a request dated xxxxxx pursuant to s.78 of the Consumer Credit Act 1974 to provide a copy of the credit agreement.This was delivered by recorded delivery to the claimant on xxxxxxx. The claimant has yet to comply.

 

8. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6.

 

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.

[AndyOrch]

I've drafted a defence referencing and adapting some recent embarrassed defences you have posted (inputted on) on CAG. The POC in the claim form I received wasn't paragraphed as such more like one paragraph, would you advise that I include the POC in my defence as below to refer to in my line items, or just remove reference to paragraphs in my defence? Remove their PoC and add " I have numbered the claimants Particulars as paragraphs for easy reference " at the start of your defence Or is this not an issue? I added a paragraph in my defence to the request I made to the claimant under s.78 of the Consumer Credit Act 1974. The claimant received this 14 (working) days ago and has not responded. Do you think I should mention about the claimant not being able to enforce the debt as it is in dispute or are these sorts of things implied anyway?

They know they are in dispute just add they are in default of my legal request.

 

 

Regards

 

Andy

 

[mike331]

I've drafted a defence referencing and adapting some recent embarrassed defences you have posted (inputted on) on CAG. The POC in the claim form I received wasn't paragraphed as such more like one paragraph, would you advise that I include the POC in my defence as below to refer to in my line items, or just remove reference to paragraphs in my defence? Remove their PoC and add " I have numbered the claimants Particulars as paragraphs for easy reference " at the start of your defence Or is this not an issue? I added a paragraph in my defence to the request I made to the claimant under s.78 of the Consumer Credit Act 1974. The claimant received this 14 (working) days ago and has not responded. Do you think I should mention about the claimant not being able to enforce the debt as it is in dispute or are these sorts of things implied anyway?

They know they are in default just add they are in default of my legal request.

 

Regards

 

Andy

 

 

Thanks Andy,

I appreciate the speedy reply, I'll make the advised revisions and submit. I'll post up any updates.

 

Regards,

Mike