1st Credit Claimform - OHs Halifax OD - want to defend mostly penalty charges

[superstarjan]

Hi there!

 

My partner has just received a CCJ through the post from an old Halifax account, (about 4 years old).

 

He was always into his overdraft and was always charged penalty charges,

so it was impossible for him to ever clear this overdraft.

 

A few years back Halifax changed their terms and conditions and he was £5 over his overdraft.

 

This resulted in him being charged an excessive amount so he closed the account.

 

However, they refused to close it and continued adding penalty charges,

 

but he disputed paying the penalty charges so since then,

 

it has been passed around many different credit agencies.

 

I have successfully had a stat demand set aside and want to help him to try and defend this,

as it now also has lots of interest on it.

 

Please can anybody point me to a similar thread or tell me the best thing to do?

 

Should I get him to send a SAR to halifax and 1st credit???

 

Many thanks!

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**

[superstarjan]

Name of the Claimant ? - 1st Credit Finance Limited

 

Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to. - 17 Apr 2014

 

Date of issue XX + 19 days ( 5 day for service + 14 days to acknowledge) = XX + 14 days to submit defence = XX (33 days in total)

 

What is the claim for – the reason they have issued the claim?

Please type out their particulars of claim (verbatim) less any identifiable data and round the amounts up/down.

 

- The claimant claims the sum of £1,000 for debt and interest.

The defendant from 1995 held an account with Bank of Scotland plc and it was assigned acco number ******

Bank of Scotland plc gr Defendant an overdraft facility.

Bank of Scotland plc demanded repayment of the outstanding sum on the account at that time.

The account was in default on 2010 and the outstanding balance was £1,000.

On 2013 the debt was assigned to 1st credit (Finance) limited in the sum of 980.00

Notices of Assignment were sent to the Defendant in accordance with S136 Law of Property Act 1925 AND THE CLAIMANT CLAIMS

1. The sum of 980.00

2. Statutory interest pursuant to Section 69 if the County Court Act 1984 at a rate of 8% per annum from 2013 to 16.4.14 32.00

and thereafter at a daily rate of 0.21 until judgement or sooner payment.

 

What is the value of the claim?Total amount = £1155.00

 

Has the claimant included section 69 interest (8%)within the total claim or is it shown separate within the Particulars but not added to the debt? - yes

 

Is the claim for a current or credit/loan account or mobile phone account? - current account

 

When did you enter into the original agreement before or after 2007? - before

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.

- assigned so it's debt purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? - not sure

 

Did you receive a Default Notice from the original creditor? - not sure

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? - not sure

 

Why did you cease payments:- no payments, a penalty charge took him over the overdraft by about £5 and since then, around £700 of charges were added

 

Was there a dispute with the original creditor that remains unresolved? - yes, he didn't think he should have to pay the charges

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? - no

 

My partner has a tendency to 'bury his head in the sand' and hasn't kept any of the paperwork,

so he is unsure whether he received the default notice,

the default sums or the assignment.

I have not put the exact dates in on the poc, only the year!

[citizenB]

Ah.. right.. my fault, I just assumed it was the same case I will remove those posts from the thread in order not to confuse others

 

 

Here you go.. your timeline.

 

Issue date - 17.04.2014 + 5 days for service = 21.04.2014 + 14 days to acknowledge claim = 05.05.2014 + 14 days to submit defence = 19.05.2014

 

I notice they sent this just before Easter and one of the May bank holidays will also fall within this. I am unsure if you will receive extra days because of the Bank Holidays, I will check for you.

 

This is a current account so as such, there will be no agreement. However, there should have been a facility letter I have provided a link to the CPR 31.14 request which is specifically for current accounts. Amend where necessary and send to the solicitor on the claim form by recorded delivery post.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387483-LEGAL-CPR-31.14-Request-when-Claim-is-being-made-for-a-Current-Account(1-Viewing)-nbsp

 

In theory, they are not required to send you a default notice either, I dont think, again I will check on this - if they are then I will provide a draft for a different request for you to send.

 

For the moment, just send the letter above as soon as possible and I will alert andyorch for you.

[superstarjan]

Great, thanks!

 

Here is the letter I will get him to send out today, can you please just check that I've deleted everything that is necessary?? Thank you!!

 

CPR 31.14 Request

 

On 26.04.14 I received the Claim Form in this case issued by you out of the Northampton County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest and counter claim all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1: The agreement/overdraft Facility confirmation and Terms and Conditions from that date. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2: The Demand/Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974

 

3: Notices of Sums in Arrears under running account credit CCA2006 sec 86C

 

4. Notice of Assignment

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence as required under CPR15.5.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request please confirm in your response.

 

Yours faithfully

[citizenB]

Perfect

[superstarjan]

Prob sounds like a daft question, but do we also need to send the acknowledgment of service off in the post today, or wait until we have a defence?

[citizenB]

You do not have to "Send" the Acknowledgment of service at all - you can do this online. The instructions are on the claim form - you will use the Claim reference and the password provided on the claim.. about 2/3rds of the way down the form on the right you will see the password highlighted.

 

You will need to register on MCOL and they will provide you with another reference number so log on armed with paper and pen as you will need this reference as well !

 

Once you have done this, you will also be able to submit your defence online and keep an eye on what is going on with the claim - always print off the receipt that is available for both the AoS and the Defence.

 

If you are unable to use the online facility for some reason, then yes.. you will most certainly need to post it immediately as it is due by the 5th May (which incidentally is a Bank Holiday !!)

[superstarjan]

Great, that's all done now!

[citizenB]

[dx100uk]

have you got the statemented evidence it is all PENALTY charges

 

dx

[superstarjan]

No, do we need to send a SAR off to Halifax?

[AndyOrch]

Try not to be distracted with gathering information with view to mitigation...that is not a valid defence but can be used to mitigate later into the process.

 

Andy

[superstarjan]

What should we be putting in the defence?

[AndyOrch]

That can be compiled subject to the responses you receive to your CPR request.

[superstarjan]

Thanks Andyorch! However, is it not worth sending off a SAR to halifax anyway, so that we can assess the situation and then if it's needed later we have it to hand?

 

Also, around 8 years ago, my partner claimed back penalty charges on this account, but after that, they continued to add them on. So my question is whether he can claim the 'new' penalty charges back, or can he only do it once?

[AndyOrch]

Always worth it but dont rely on it being complied with pre defence.

[superstarjan]

We haven't heard anything from Halifax regarding the SAR and the solicitors, have sent a letter saying that it is on hold. Do we still need to send in a defence, or wait to see what the solicitors say next?

[superstarjan]

I've read up on similar thread and amended their defence to suit this claim. Please can you check over it, before I send it so that I can be sure it's ok??? I will also post the POC first:-

 

POC:

- The claimant claims the sum of £1,000 for debt and interest.

 

The defendant from 1995 held an account with Bank of Scotland plc and it was assigned acco number ******

Bank of Scotland plc gr Defendant an overdraft facility.

 

Bank of Scotland plc demanded repayment of the outstanding sum on the account at that time.

 

The account was in default on 2010 and the outstanding balance was £1,000.

 

On 2013 the debt was assigned to 1st credit (Finance) limited in the sum of 980.00

 

Notices of Assignment were sent to the Defendant in accordance with S136 Law of Property Act 1925 AND THE CLAIMANT CLAIMS

 

1. The sum of 980.00

2. Statutory interest pursuant to Section 69 if the county court Act 1984 at a rate of 8% per annum from 2013 to 16.4.14 32.00

and thereafter at a daily rate of 0.21 until judgement or sooner payment.

 

Defence:

 

It is accepted that I have had financial dealings with Bank of Scotland in the past I am not aware or ever been informed of any legal assignment of this account number to the claimant.

 

It is not admitted with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach.

 

It is denied with regards to the amount the Defendant owing monies to the Claimant and the Claimant is put to strict proof to:

 

(i) Show how the Defendant has reached the amount claimed for.

(ii) Show the APR and interest used to calculate the amount claimed for.

 

On receipt of the claim form the Defendant sent a CPR 31.14 request dated 28 April 2014 for a copy of the Overdraft facility agreement, Notice served under Sections 76(1) and 98(1) of the CCA1974, 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 signed for by the claimant on 30th April 2014. The claimant has yet to comply and has sent a letter in response stating that the claim has been put on hold pending a response to the said letter.

 

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 Notice served under Sections 76(1) and 98(1) of the CCA1974

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

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

 

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.

 

Until such time the Claimant can comply with my request for a copy of the Overdraft facility agreement/Notice served under Sections 76(1) and 98(1) of the CCA1974 it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974

[AndyOrch]

Yes that's one of my drafts Jan..although you have left off the ending " 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 " You must always finish with that statement

 

.......here is a slightly newer version.

 

#####Defence Current Account example######

 

1. It is admitted with regards to the Defendant having use of a facility to overdraw with the original creditor Lloyds TSB Bank.

 

2. The defendant denies that the alleged amount was for finance service or goods but is as a result of unfair and extortionate bank charges/penalties being applied to the account.

 

3. I refute the claimants claim is owed or payable. The amount claimed consists totally of default penalties/charges levied on the account for alleged late, rejected or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

4. 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. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

5. The claimant is denied from added section 69 interest within the total claimed that as yet to be decided at the courts discretion.

 

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

 

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

7. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated XX XXXXX 2014 namely the Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request.

 

8.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.

 

Regards

 

Andy

[superstarjan]

Great, thank you very much!

 

Just one quick question before I send it, paragraph 7 refers to agreement and termination demand notice being referred to in the poc, I don't think it is, is ?? So shall I remove it, or reword it?

 

Thanks again!

[AndyOrch]

Yes if you have not requested them.

[superstarjan]

Hi, I'm back!

 

We have now had notification from 1st credit that they are going to proceed. They have sent a copy of statements and a template default notice with a screen shot saying that one was sent to my partner. The default notice was never received and this one has a different amount and date on it than the one they claim was sent. Nothing else was sent.

 

Looking at the statements, he was within his overdraft until interest took him over by £3.50. Then over the next 4 months £580 was applied as charges and then more charges have been applied as it's been passed around dca's amounting to £230. In the 4 years before that, he has also been charged £350 in bank charges.

 

Are they bluffing, or do they still have a case?

[AndyOrch]

Time will tell ....but if you receive a N180 Directions Questionnaire then they are proceeding.

[superstarjan]

it doesn't sound to me as though they've got a leg to stand on though!

 

I know my partner claimed back his penalty charges around 9 years ago-ish but loads have been added on since that