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mike_123

Optima Legal - Defence Needed Urgent (7 days)

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Hi all,

 

I've been fighting a case with Optima Legal over the past 4-5 months. To quickly bring everyone up to speed, heres what has been happening.

  • CPR 31.14 request sent 7/11/2013
  • Extension agreed until 01/01/2014 (as no paperwork arrived)
  • Filed a "holding defence" with a N244 order on 01/01/2014.
  • Order was accepted, Optima Legal given until 24/02/2014 to comply with CPR 31.14 request or the claim would be struck out. Documents turned up on 21st.
  • I now have until 17/04/2014 to submit my defence.

Basically, the documents they sent were the following:

 

  • A reconstituted copy of the Credit Agreement
    This has NO signatures on it, I do not think I ever signed one (this is for a catalogue company shopping direct, perhaps why it took so long to arrive).
  • A copy of the Notice of Assignment from Shop Direct Finance dated 02/11/2010
  • A copy of the Notice of Assignment from Capquest dated 2/11/2010

  • Account Summary of transactions
  • A copy of Judgement HSBC Bank PLC V Carey (2009) EWHC 3417 (QB) and A copy of Judgement of Lombard Northern Central PLC v Power Hines (1995)

There was NO default notice supplied. However I have been informed from another forum that the The Lombard v Power Hines case will be quoted to cover the lack of default notice and that my best chance would be through the reconstituted credit agreement? I really do not think I ever signed one. If I recall rightly they use to send the first lot of goods with the credit agreement in but I never returned it.

 

I have uploaded the credit agreement if anybody could please take a look and advise me of a possible defence? Also, if anyone is wondering, the account was opened 19/09/2008 according to my credit file.

 

Thanks,

Mike

Edited by mike_123

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Hi Mike and welcome to CAG

 

You need to convert your uploads to PDF with any personal data removed.

 

You very last sentence is the key here...as its post 2007 then a reconstituted will suffice and will probably be accepted by most Courts.But what about the actual debt...what are the reasons for defending the claim...what are your disputes.

 

Regards

 

Andy


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You very last sentence is the key here...as its post 2007 then a reconstituted will suffice and will probably be accepted by most Courts.But what about the actual debt...what are the reasons for defending the claim...what are your disputes.

 

Thanks for your speedy response. I have converted them to PDF now, hope you can see them.

 

I do not exactly have any clear disputes, I'm fairly new in regards to the debt department. I'm merely fighting it based on advice given from the other forum, as they said given the circumstances I was better off fighting than just giving in straight away.

[ATTACH=CONFIG]49673[/ATTACH][ATTACH=CONFIG]49674[/ATTACH][ATTACH=CONFIG]49672[/ATTACH][ATTACH=CONFIG]49671[/ATTACH]

Edited by mike_123

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Oh dear and you also made an application along with your defence for disclosure.Was this with an hearing or without?


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No no, the N244 order was made without a hearing. It was accepted and came within 3 days of having the claim struck out. But within the draft orders I supplied, I now have until the 17th of March 2014 to submit my actual defence... but judging by what you've said so far, theres not going to be much of one.

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Thank heavens for that...I was just considering costs.My advice to you now is to approach the the claimant and suggest a settlement by way of a Consent Order/Tomlin Order by way of a F&FS or a payment plan if acceptable on the understanding the claimant either withdraws the claim or leaves it stayed with out judgment subject to terms of the Consent.

 

Regards

 

Andy


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I see. The other forum has now suggested the sec 61 signing of agreement argument, however they also state in their opinion the court would deem I accepted the terms. As the account is after April 2007 I'm pretty much out of options (as the court is able to look at all evidence and can still enforce a CCJ). Thanks for your quick replies, I will most likely have to explore the payment plan options etc. You can close this thread now, thanks again.

Edited by mike_123

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No problem your welcome. ..... however the thread will remain open to serve purpose to others as to why you never make an application pre defence for disclosure.

 

Regards

 

Andy


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To be honest if I had been told about the After 2007 changes to begin with (in which courts can still enforce CCJ's even with no signature), I would have known my chances of defending would have been limited. However when you are completely new to debt, and you get people telling you to make CCA requests and CPR 31.14 requests straight away when you have never even heard of them, it all gets a little confusing. I simply followed advice from other "site mods" on a different forum, therefore perhaps the whole process should be explained more clearly first, and my advice to others would be to research different opinions.

 

The N244 application was made simply to force the claimant to comply with the CPR 31.14 request and supply the said documents described in the particulars of claim. If the documents never arrived, the case would have been closed. Therefore in my personal opinion, the steps I taken were perfectly acceptable and the case was nearly dropped. I was skeptical whether the documents would ever arrive (as it took over 220 days), or if they did the credit agreement would come without signature and therefore I believed the court could not enforce a CCJ. However as I said initially, I did not know about the after April 2007 changes in which they can still enforce it.

 

Regards,

Mike

Edited by mike_123

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Litigation is rather like playing poker and you never show your full hand...here on CAG we explain as to why you are making request and what you hope to achieve.

By making application you have forced the claim to its pinnacle and therefore preventing yourself the opportunity to mediate by shortening the process.

 

Always aim for the long game try to draw the claimant into deciding this is not viable.It is true that your application almost worked but Im sure the claimant would have set it a side and disclosed anyway.

 

But as I stated initially the key was the date of the agreement.


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I see your point about the long game. My trade off was between having the claim stayed in which they could have resurrected the case at any date (therefore living on edge) or going all out trying to get the case closed. With the poker reference, I gambled and lost (just).

 

However as you point out, the key was the date of the agreement and I was most likely always going to lose at some point down the line. Lessons have been learnt and should anything else like this happen in the future (hopefully not), I will think every step through thoroughly and get advice from more than one person/forum.

Edited by mike_123

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