Credit card defence deadline imminent

[attilo]

Site team / for Andyorch

 

Hello, I'm Attilo

 

Need Andy’s urgent help please, if available.

 

I have to defend a claim by Sunday from a solicitor for a terminated credit card now in the hands of a debt purchaser. I'll reveal their identities when all this is over.

 

Please don't scold me for popping up at the last moment. I am alone with almost no social contact and my own laptop gave up the ghost just as the claim form arrived. Since then I've had to beg and plead to finally get lent this old laptop and tether it (unauthorised) to my mobile. I am a pensioner in long-term poor health with multiple disabilities, including visual impairment, which makes it a struggle for me to navigate / research web pages etc. – all the more so on an unfamiliar computer.

 

So I'd appreciate my defence below being checked and improved. Have been trying to learn how to construct a one by reading the forum over the months but am not sure whether I have mastered it.

 

I received claim form via CCBC. I sent acknowledgment 25.5, therefore have to submit defence by 8.6. I sent CPR 31.14 and CCA 1974 s.77/78 requests to solicitor, they declined to supply and returned my CCA fee.

 

Queries:

 

1 I know I held the account in question. I have almost all, if not all, the statements. The account changed no., but not type, over the years. The claimant is, of course, claiming on the basis of the account no. at termination not inception; presumably they will not know it changed. Is it vexatious to ask them to prove only the no. they refer to in their POC, when I know the account began with a different no.?

 

2 I have the DN. It is non-compliant. I have the NoA, but query its validity too. Do I nevertheless request that the Opposition produce them? If the matter proceeds to a hearing, how might court view my producing rabbits such as these from my hat after I've pleaded ignorance of the DN/NoA and the account to which they relate?

 

3 Sixth anniversary of my last payment was 2.4.14. However, DMC did make written acknowledgment after that, the last being to a DCA [not the right one, see ‘timeline’ notes below] 05/09. Is it true that debt purchasers are not provided this sort of information? Can I assume the claimant believes my last payment to be my last acknowledgment?

 

4 How can I attempt to assert that the claim is SB if I am not recognising the claim (and incorporate it into the defence) - or do I leave that for my witness statement after the Opposition have furnished me with the evidence?

 

5 Second letter from solicitor said: we will issue claim unless agreed repayment

 

========================================================

 

Amount claimed is £19,800 plus court / solicitor fees. No interest.

I have no assets and no income other than benefits.

 

No statements nor notices of sums in arrears have been received since account terminated.

 

A few late payment and over-limit charges were applied, but mere peanuts in the scheme of things; not my main concern at all right now.

 

POC C claims [amount] which is the balance due from D to C on credit card agreement no. xxx between D and [bankname]. This agreement was assigned to D on [date]. NoA was sent to D. As D failed to pay in accordance with the terms of the agreement a Default Notice pursuant to CCA 1974 was served. C claims [amount].

 

========================================================

 

Here is the skeleton on which I propose to build my defence.

 

1 The defendant sent on 10.5.14 to the claimant's solicitor requests under section 31.14 of the Civil Procedure Rules section 77/78 of the Consumer Credit Act 1974. The defendant responded on 20.5.14 but failed to comply.

 

2 The claimant has not complied with pre-action conduct of the Practice Directions.

[but which?]

 

3 I put the claimant to strict proof that:

 

i the defendant entered into an agreement no. 1234 1234 1234 1234 with [bankname].

[Even though I know I did enter into an agreement, but no. 1256 5678 5678 5678?]

 

ii this purported agreement was assigned to them on [DATE].

 

iii valid notice of the purported assignment was provided to the defendant.

[Even though I received a NoA whose validity I contest?]

 

iv the defendant failed to make payment in accordance with the purported agreement.

 

v a valid default notice has been supplied pursuant to the Consumer Credit Act 1974.

[Even though I have a DN, albeit non-compliant?]

 

4 As per Civil Procedure Rule 6.5 (4) it is expected that the Claimant prove the allegation that money is owed.

 

5 On the alternative, if the Claimant is the 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 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.

 

Thanks in advance for help and sorry for springing this at such short notice, but it really was beyond my control.

 

Attilo Xaci

 

 

========================================================

 

 

Timeline [for reference]

 

11/01 Applied for credit card. Arrived 2 weeks later. No CCA signed, just application form. Still have TCs which accompanied card.

 

06/07 Offered promotional rate of 0.482% pm - and similar per most of time since inception.

 

10/07 Despite impeccable payment record on this and other card with same co. (acquired due to another provider selling off their CC arm), received notification of "credit facility withdrawn".

 

10/07 Int rate jacked up to 2.0751% pm and min repayment % increased.

 

11/07 Sales marshall attempts to sell me personal loan [ie to secure these unsecured accounts].

 

12/07 Int rate jacked up to 2.5292% pm and min repayment % increased.

 

01/08 Entered into 3 month AP £60/mo x2 [though I knew unaffordable and unsustainable].

 

01/08 Collection threat letters from both creditor and external DCA began, including ...

 

06/08 I wrote explaining my circumstances, requesting write-off and enclosing CCA request but didn't keep proof of posting. They ignored, sending only their template TYFYL, "we can talk this through if you call, can't we?".

 

07/08 60% discount offer.

 

09/08 Default Notice. Not compliant: insufficient remedy time; layout/content not as per OFT rules.

 

10/08 More external DCA luna park activity, followed by some disguised internal (no mention of connection of this DCA to claimant, even in small print) and eventual further offer of 60% discount.

 

11/08 Not knowing better, asked local DMC charity for help. Signed letter of authority.

 

05/09 DMC wrote to DCA offering £1, unaware that the DCA had already returned the account to OC.

 

02/12 Assigned to debt purchaser. Notice of Assignment sent by neither assignor nor assignee but by DCA (external, not in-house) on behalf of purchaser.

 

04/12 Collection letters resumed, but only 3 in total and only 2 DCAs until 10/13, when SB alert triggered, and account sent first to one solicitor, next to other (who issued claim).

 

04/14 Sixth anniversary of first zero payment. (SB if COA = first breach of TCs and if ERP unaware of correspondence from debt charity, q.v.)

 

05/14 Second letter from solicitor: we will issue claim unless agreed repayment

 

05/14 Claim form from CCBC received. Thence as per my post above.

 

=======================================================

[havinastella]

Hi and welcome to CAG.

 

If you acknowledged the claim, then your defense is not due for another 15 days.

[havinastella]

Surely this claim is Statue barred (no payment since Jan 08) Can you confirm this!

[AndyOrch]

Hi attilo and welcome to CAG

 

If the debt is statute barred then you go with that only in your defence no need to deny or agree anything.

 

Account numbers can change on assignment so that would be accepted by a court.

 

One query...." 01/08 Entered into 3 month AP £60/mo x2 [though I knew unaffordable and unsustainable]. "

 

Did you make any payment ? what date was your last payment..default notice issued Sept 08.

 

Regards

 

Andy

[attilo]

Hi attilo and welcome to CAG

 

If the debt is statute barred then you go with that only in your defence no need to deny or agree anything.

 

Account numbers can change on assignment so that would be accepted by a court.

 

One query...." 01/08 Entered into 3 month AP £60/mo x2 [though I knew unaffordable and unsustainable]. "

 

Did you make any payment ? what date was your last payment..default notice issued Sept 08.

 

Regards

 

Andy

 

 

Thanks to you and h.a.s for answering. I've tried to cover my concern about SB but let me try again:

 

I know SB is an absolute defence but not sure about whether I dare to claim SB.

 

Made part payments Jan Feb Mar 08 statements. Last payment date 2.4.08. [sorry I should have edited out the x2 in original post , it meant on 2 accounts]. BUT ... I then wrote to OC [see my timeline] requesting write-off based on circumstances, which they ignored. And DMC later wrote twice to DCAs with IE, which DMC sent to wrong DCA. I have read here that assignees only receive bare bone spreadsheet, not history of correspondence, but what if I claimed SB and they find out it's not?

 

As for account no. changing, as I said, it was same account type, same provider, just they replaced the card and account no. - not requested by me. So the original account no. is not that from the inception. Assignee account no. is not mentioned at all in correspondence from solicitor, but that's another matter.

 

Can you apply your engineering skills to my defence? I'm all at sea and it has to be submitted tomorrow.

 

I know for a fact that I never signed an agreement. Just application >> card in post. And I' certain of the non-compliant nature of the DN which I still have.

 

Thanks for the welcome too.

 

Attilo

Edited June 7, 2014 by attilo

[AndyOrch]

I would run with the SB defence in all honesty...rather than defend on any of the other points you have raised.

[attilo]

I would run with the SB defence in all honesty...rather than defend on any of the other points you have raised.

 

What about correspondence from me to OC and then from DMC to [wrong] DCA? Am I not in trouble if they produce evidence of it?

 

I thought non-compliant DN and non-existent executed CCA would make my defence watertight.

 

Is there any harm done in raising these issues?

[AndyOrch]

They cant even produce the agreement let alone any communication ......

 

" Is it true that debt purchasers are not provided this sort of information? Can I assume the claimant believes my last payment to be my last acknowledgment?"

 

In most cases yes...can you PM me the name of claimant/solicitor ?

 

Regards

 

Andy

[attilo]

They cant even produce the agreement let alone any communication ......

 

" Is it true that debt purchasers are not provided this sort of information? Can I assume the claimant believes my last payment to be my last acknowledgment?"

 

In most cases yes...can you PM me the name of claimant/solicitor ?

 

Regards

 

Andy

 

 

I'll PM it now and let you change thread title to amend it if/when time for champagne popping arrives.

[attilo]

Andy Where do I PM from? Confusing licquorice allsorts + dolly mixtures on every page, not easy for visually impaired user.

 

[AndyOrch]

click my name on my avatar and then send message

[attilo]

Andy Where do I PM from? Confusing licquorice allsorts + dolly mixtures on every page, not easy for visually impaired user.

 

 

doh

[AndyOrch]

Thanks...no surprises there then....

 

 

Defence

 

1 The Claimant's claim was issued on (date).

 

2 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation acticon 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

3 The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

 

Regards

 

Andy

[attilo]

T y v m i Andy.

 

Why the blinking heck did they let SB date come and then go for the kill *after*?

 

I haven't quite got the hang of this game!

 

You absolutely *sure* these morons won't have records beyond last payment? I have been so scared in case they do.

 

Attilo

[AndyOrch]

They may argue cause of action is from the DN date IE 09/08 therefore it will not be SB until 09/14....but I have yet to see it in any claim.Should that happen then you could amend your defence then particularise within your Witness Statement.

 

If the claim is over 10K you must understand that this will be in the Fast Track...good for disclosure ...risky on costs.

[attilo]

They may argue cause of action is from the DN date IE 09/08 therefore it will not be SB until 09/14....but I have yet to see it in any claim.Should that happen then you could amend your defence then particularise within your Witness Statement.

 

If the claim is over 10K you must understand that this will be in the Fast Track...good for disclosure ...risky on costs.

 

Yes I'm aware of Fast Track situation. Am also aware that one could argue Cause of Action from DN. However, I’m confident about no CCA and defective DN, so if a defence can be amended / particularised in WS as you say, I’m not worried at all. Wish I’d known this before: I wouldn’t have wasted time trying to construct a defence that wasn’t needed.

 

Thank you again for your rapid and comprehensive help.

 

I’ll post back when anything happens ---- or doesn’t.

 

Bye for now.

 

Attilo