Aktiv Kapital Claimform - nationwide creditcard 'debt'

[barafear799]

Hi,Hoping for some advice as to how to proceed having received a court claim from Activ Capital.

 

 

Unfortunately, I've left the claim form at home - so cannot give the specifics - but basically - the case concerns the following:Nationwide Credit Card. Agreement taken out approx 2005. Defaulted in 2010/11.

 

 

I also had a Nationwide Current Account at the time - at the drop of a hat, they reduced my agreed overdraft by 40% with no notice. I then got into difficulties, and I missed a few payments. The credit limit was £5,000 - and the "closing balance" was about £5150.

 

 

Activ have now added interest from the time of default to the time of the claim - and together with costs, the total claimed is now more than £6500!!

 

 

I'm not sure I have a viable defence - but I am disappointed about the interest being added.Have I gone beyond the time to try to negotiate a lower settlement figure?

 

 

I understand there is something called a Tomlin Order - but generally the claimant/DCA is not going to accept much lower than the claimed amount?

 

 

Advice muched required and much appreciated.Thanksb799

Edited December 30, 2013 by Andyorch
papragraphs added

[AndyOrch]

Hi barafear

 

 

You still have time to approach the claimant to try to negotiate a settlement figure by way of a consent order. You must acknowledge the claim on time irrespective which will allow time (assuming you defend all at this stage) of a further 28 day to consider.

 

 

Acknowledgment date is 5 + 14 from the date on the N1.

 

 

Regards

 

 

Andy

[barafear799]

Thanks Andy.The claim landed on my post mat two days before Christmas! (Who said DCAs don't join in the spirit).The address for Correspondence is their solicitors. (Hegertys) - should I write to them?What is a consent order? Will this be "administered" through the court? Will it show on my credit record/file? What's the difference between a "Court Order" and a CCJ?

[AndyOrch]

Thanks Andy.The claim landed on my post mat two days before Christmas! (Who said DCAs don't join in the spirit).The address for Correspondence is their solicitors. (Hegertys) - should I write to them? Yes or phone but its important to state that you will be defending the claim therefore send CPR/CCA requests before you contact them then they know you are no pushover

 

 

What is a consent order? A Consent /Tomlin Order stays the claim and avoids the CCJ providing you stick to the agreement and never default Will this be "administered" through the court? Yes Will it show on my credit record/file? No What's the difference between a "Court Order" and a CCJ?

See above

Regards

Andy

[barafear799]

Thanks for the answers above - much appreciated.Bit of a generalised question - but is there a general level of what the claimant will accept in terms of agreeing a settlement figure for a Tomlin Order?

[AndyOrch]

Not really they may not even offer a settlement or a Tomlin you will have to test the water....CCA/CPR first then sound them out.

[barafear799]

Thought I'd update with the POC if it helps:It's a bit wordy!!

 

 

The claimant is the Assignee of a debt due in relation to a credit agreement regulated by the CCA 1974 entered into between NW BS and the defendant...............

 

 

Notice of assignment was procided to the defendant by the claimant in writing. ..............The agreement was terminated upon the defendant failure to comply with the terms of the agreement and/or the statutory notice of default served by NW BS........

 

 

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

And the claimant claims : CC A/C No xxxxx balance of £XXXX as of xx/xx/2010........interest under s69 of the County Court Act 1984 at the rate of 8% a year from the default date to Dec 2013 of £xxxx and interest at the same rate up to the date of judgement or earlier payment at the daily rate of £xxx AND Costs.

 

 

 

 

I've added a few dots and things to space it out a bit. I was wondering about the interest - and then I read somewhere on another thread that there is confusion over a DCA's right to charge interest - but I'm sure there was mention of whether an agreement had been defaulted or terminated.

 

 

Although judging by the wording above, it appears my agreement was terminated when the notice of default was issued.

 

 

I will get on a do the CCA/CPR request - but it's a fairly recent agreement, so I have a feeling the paperwork will be in order.

 

 

What did the POC mean about "pre-action conduct" - does sending numerous letters and calling me at home (when I am at work) 3 times a day count as complying with this conduct?

 

 

There was never any mention of interest in their letters.

Edited December 31, 2013 by Andyorch
paragraphs added

[barafear799]

Hi,Sorry - can I just ask - should I be sending the CCA request to the Solicitor's address stated on the court claim form? Or should I send it to the "Claimant" - Aktiv Kapital's address in Switzerland?Also - does the CPR request need to go to Aktiv or Nationwide?ThanksB

[AndyOrch]

Send them both to either the Claimant or the Solicitor.

[barafear799]

In the same envelope ok?

[AndyOrch]

I would recommend 2 (Both cant be lost in the post)

[barafear799]

Ok, I have done my AOS and sent off my CPR and CAA requests to the solicitor. In the meantime, whilst waiting for their reply, I need to formulate a defence. Does anyone have any advice?Many thanks

[barafear799]

Hi,I could do with some advice please. I'm not sure whether I am out of time or not - it's close.So the history is: I received a claim dated 18 Dec (admittedly it didn't arrive with the Christmas post until 23rd) - and then given the Christmas period - I didn't really deal with it until early Jan. With the assistance from here (as above in this thread) I sent separate CPR and CAA requests to the solicitor - I received a letter from them confirming they had received them and had passed them onto the "client" for the info. That was done around 8th Jan. I still have not had any further reply. I have done my AOS in the recommended timeframe detailing that I was going to defend.However, it is now 24th Jan and to date I have not put in a defence as I was awaiting the CPR and CAA returns.Can someone please suggest or advise on my next course of action?Many thanksB

[AndyOrch]

I make it you are 5 days too late...you can still check the screen on MCOL and see if it will allow you to submit a defence...but you really should have been on top of this...Christmas or no Christmas.

 

Andy

[barafear799]

Thanks Andy.As well as Christmas, I have also been awaiting the reply to the CAA/CPR Requests.Given that they have not arrived - is there any sort of "holding defence" I can enter (assuming it will allow me)?I would need some guidance or direction as to the exact format/wording of my defence please.Many thanks or all your help.

[barafear799]

I've just tried to login to the MCOL screen and it's stating the password used is incorrect (the password on the court claim form) - does this mean I am out of time and cannot submit a defence?I tried to phone the court number - but was unable to speak to anyone - just mentioned I should fill in the relevant forms online.Any help please?Thanks

[Guest]

you need to get a defence in asap, to poss avoid a default judgment.

afaik, a defence can be submitted online, email, or by post?

maybe too late though, they may have already applied for default judgment since. check with the court.

[barafear799]

you need to get a defence in asap, to poss avoid a default judgment.

afaik, a defence can be submitted online, email, or by post?

maybe too late though, they may have already applied for default judgment since. check with the court.

 

Thanks for the reply. As I said above, I did try to login with the password provided on the claim form and it wouldn't login for me - stating the password was wrong - I tried several times - but no go.I also tried to get through to the court - but no joy - just an automated response - telling me to fill in a defence online!I have been quite naive here - I was waiting for the return of the documents requested in my CAA/CPR request before completing my defence and now it appears I have exceeded the time limit.

[Guest]

send one by email then? pointing out in covering letter difficulty in doing it online? or check/explain with court first by phone on monday first thing?

[havinastella]

I agree with Ford. Work hard all weekend to get your defense right, post it up as you go and others can help. First thing Monday, ring the court and explain the problems trying to log in and send it via email and RMSD.

[barafear799]

Thanks once again for the replies. Unfortunately, I was working most of the weekend and did not have access to the internet - I phoned the court this morning and picked up their email address - ---

 

I have now emailed them to which they replied stating I could submit my defence by email.......

 

.I have been waiting for the return of info from my CPR/CAA requests - these were received by Activ's solicitors on 8 January - and as stated - I still have no reply. Is there a case of them defaulting on failing to provide this info in good time? .....moving on - because of this - I have not prepared in full a defence - ---- the only defence I have picked up - from this site is in the form as below:

 

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 Nationwide/Acvtiv .

 

2. Paragraph 1 is neither admitted nor denied with regards to 'the defendant*defaulted' on the Agreement with Nationwide/Activ.

 

3. It 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 Procedureicon 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 the alternative, the Agreement referred to in paragraph 1*was improperly executed contrary to Section 61(1)(a) of the*Consumer Credit Act 1974 ('the Act').

 

7. The Agreement cannot be enforced against the Defendant without*an order of the court by the reason of the fact that it was*improperly executed as set out above and by reason of Section*65(1) of the Act.

 

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.

 

Can you please advise I can use this "form" of defence given the circumstances.

Or should there be something else that I should be including to state the lack of response to my CPR/CAA request?

Also - on a slightly separate (idiot's guide question) - I wasn't sure what the * referred to above - it appears to be just a break in sentences? Thanks once again!!!!!!

[Guest]

bara

can you revisit your post (edit) and paragraph it for ease of reference/reading?

[barafear799]

I really wsh I could - but every time I seem to post a long message on here - it comes out all squashed up! Am I missing something obvious?

[barafear799]

managed to change some editing settings in my profile!! If only someone had told me all those years ago!!! Hopefully it is a little more readable - and any help very much appreciated.

 

Thanks

[Guest]

thats better

is this re a credit card? did you get a compliant default notice? could include that in your defence ie the requirement for a compliant def notice before enforcement, put them to proof re that also.

also, briefly mention somewhere your cpr requests that remain unanswered. is small claims, but worth a mention.

needs a bit of amendment imo.

 

bump though for others to hopefully look in on your defence. perhaps give andyorch a nudge as he's on your thread?