Marlin/Shoosmiths Summary Cause - old LloydsTsb loan

[Tesis]

Have read that many cases, including this one, for some reason I thought she had suddenly heard from them again this year and didn't go to court or something. Must be someone else. Anyway, I'm going to put something together between tonight and tomorrow and perhaps you could look over it before I hand it in on Friday. Thanks.

[AndyOrch]

[Tesis]

Hi, Andy,

 

Used the link you gave to prepare the following. Would be appreciated if you could give feedback and I've added a few questions in bold too

 

Holding Defence

 

The Defender intimates his intention to defend the action craved for by the Pursuer, Marlin Europe II Limited.

 

On the 02/07/2014 the Defender requested that the Pursuer provide a verified and legible copy of each of the documents mentioned in their Statement of Claim: The Agreement; Statement of Account. This request was made under CPR 31.14. The Pursuer has not made a request to the Defender for more time to comply with the request and as such the Defender expects to receive these documents by the 11/07/2014.

 

On the 07/07/2014 the Defender made a further request that the Pursuer provide a true copy of the credit agreement relating to the account in question under s77/78 of the Consumer Credit Act 1974. The pursuer has until the 21/07/2014 to reply to this request.

 

(Should I add a copies of letters sent - don't think I need to at this point since I think there is a date made for the production of documents from both parties. Hmmmm ... should I mention I have copies then along with receipts and proof of their having received them??? Think I just have this need to say, "You're not the only one with documents!!!" )

 

On receipt of the aforementioned documents, the Defender, given time to peruse the documents will file a defence. (Should I mention the calling date here???)

 

(Should I mention this?) The Defender has in his possession the original Customer’s Copy of Agreement, which fails to state the total cost of the loan. The Defender also has in his possession an offer of a further loan with the same interest rate which he refused to enter into, now knowing the total cost of undertaking such an agreement.

 

(Can I add a counterclaim similar to this???) The Defender wishes to defend this claim in full and issue a counter claim for damages to the Defender's credit rating that the Pursuer has caused. In this respect the Defender cites the case of Richard Durkin v DSG Retail Limited and HFC Bank plc, (Judgement of Sheriff J.K. Tierney, Sheriffdom of Grampian Highland and Islands at Aberdeen (A187/04)) a copy of which will be provided within the Defender's First Inventory of Productions.

 

In respect whereof

 

 

Signed ......................... ......................... ...............

 

 

Date: 10/07/2014

 

Your Name

Your Address

 

 

DEFENDER

 

____________

 

If you are unable to read over it, don't worry. I will put in the calling date and just leave out the other parts, although I would like to counterclaim! I believe hubby has to sign this letter.

 

Court is only a couple of miles away and I intend to hand this in by hand tomorrow at some point before the close of day. Last question, do I need to hand in 3 copies??? Doesn't ask anywhere that I do.

 

 

Kind regards

 

Tesis

[Tesis]

Btw, in my search for information came across a recent case Both relevant and up to date should the need arise to refer to a case.

Edited July 10, 2014 by Andyorch
External website removed.

[AndyOrch]

Could you type out verbatim the contents of their particulars Tesis...less any identifiable data.

 

Andy

[Tesis]

STATEMENT OF CLAIM

 

1. The parties are as designed in the instance. The named defender resides at .... The defender has been so resident for more than three months immediately preceding the raising of this action. The defender is domiciled there. This court accordingly has jurisdiction. There are no proceedings pending before any other Court involving the present cause of action and between the parties hereto. No agreement exists prorogating jurisdiction to another Court.

 

2. The pursuers are a finance company which inter alia operates the business of debt purchasing. By virtue of a debt purchase agreement between the pursuers and Lloyds Banking Group dated 2 December 2013 the pursuer acquired the right to payment in respect of all debts and other monetary claims of any nature due or owing by the defenders to Lloyds Banking Group which were in existence as at the date the said Agreement was entered into in relation to the contract hereinafter condescended upon. The said assignation was intimated to the defender by way of a written notice on or around the date of assignation.

 

3. The said contract between Lloyds Banking Group and the defender is a regulated credit agreement in terms of Section 189 of the Consumer Credit Act 1974. It is dated 1 September 2004 and relates to an agreement with account number .... The said account is in default and the sum due thereunder is due and payable now. As at the date hereof, the sum due in terms of the said agreement amounts to £3952.66 conform to copy statement of account which will be produced in any defended process to follow hereon. In terms of the debt purchase agreement hereinbefore condescended upon, the right to receive payment of the sums due in terms of the said statement of account.

 

4. The defender has been called upon to make payment of the sums sued for. They refuse or at least delay in doing so. This action is accordingly necessary.

[AndyOrch]

Holding Defence

 

The Defender intimates his intention to defend the action craved for by the Pursuer, Marlin Europe II Limited.

 

The Defender accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

On the 02/07/2014 the Defender requested that the Pursuer provide a verified and legible copy of each of the documents mentioned in their Statement of Claim: The Agreement; Statement of Account. This request was made under CPR 31.14. The Pursuer has not made a request to the Defender for more time to comply with the request and as such the Defender expects to receive these documents by the 11/07/2014.

 

On the 07/07/2014 the Defender made a further request that the Pursuer provide a true copy of the credit agreement relating to the account in question under s77/78 of the consumer crediticon Act 1974. The pursuer has until the 21/07/2014 to reply to this request.

 

(Should I add a copies of letters sent - don't think I need to at this point since I think there is a date made for the production of documents from both parties. Hmmmm ... should I mention I have copies then along with receipts and proof of their having received them??? Think I just have this need to say, "You're not the only one with documents!!!" ) No not at this stage

 

On receipt of the aforementioned documents, the Defender, given time to peruse the documents will file a defence. (Should I mention the calling date here???) Yes

 

(Should I mention this?) The Defender has in his possession the original Customer’s Copy of Agreement, which fails to state the total cost of the loan. The Defender also has in his possession an offer of a further loan with the same interest rate which he refused to enter into, now knowing the total cost of undertaking such an agreement.No retain that for later never show all your hand at this stage let them disclose what they have first then you can counter it.

 

(Can I add a counterclaim similar to this???) The Defender wishes to defend this claim in full and issue a counter claim for damages to the Defender's credit rating that the Pursuer has caused. In this respect the Defender cites the case of Richard Durkin v DSG Retail Limited and HFC Bank plc, (Judgement of Sheriff J.K. Tierney, Sheriffdom of Grampian Highland and Islands at Aberdeen (A187/04)) a copy of which will be provided within the Defender's First Inventory of Productions. I personally wouldnt ...you will be asked to prove damage.... but if you have evidence its your claim your call

 

In respect where of

 

 

Signed ......................... ......................... ...............

 

 

Date: 10/07/2014

 

Your Name

Your Address

 

 

DEFENDER

 

Regards

 

Andy

[Tesis]

On receipt of the aforementioned documents, the Defender, given time to peruse the documents will file a defence for the calling date of 24/07/2014.

 

I made that wee bit up does it really sound ok?

[Tesis]

I will follow your advice about the counterclaim.

[AndyOrch]

On receipt of the aforementioned documents, the Defender, given time to peruse the documents will file a defence for the calling date of 24/07/2014.

 

I made that wee bit up does it really sound ok?

 

 

You are basically stating that should they disclose you would submit a further defence....a tip..you need the courts and the claimant (pursuer) permission to file an amended defence and in England with an application and fee so I would think wisely before leaving that statement in.

[Tesis]

I think I just wanted to say that I'll give my real defence when I've read these documents. I'm not really seeing the holding defence as my real defence. In my eyes my real defence is to do with the amount of interest and the fact it wasn't disclosed either orally or in writing at the time of taking out the loan which apparently they should've done at the time and I'm hoping any documents released will support this. I haven't mentioned any of that in the statement because I haven't seen their documents and so I added that wee bit as a way of saying I'll give you my real defence when I've read these other documents. The holding defence to me is just a way of letting them know I intend to defend. Does this make sense? I can be quite pedantic and get myself tied up in knots!

[Tesis]

Courts on strike so to hand it in tomorrow. Short letter back from Marlin Financial Services, not Marlin Europe II Ltd., briefly stating they have requested a statement of account and copy of the agreement from the original creditor and to ensure I send all future correspondence to Shoosmiths. They said they received it in their office the 8th despite the fact they signed for it on the 4th. This is in response to the CPR 31.14 request.

 

Also followed your advice and left out the wee extra bit in the holding defence. So it looked just like you advised.

 

Regards

 

Tesis

[Tesis]

Hi Andy,

 

Just to confirm I handed in defence on Friday. Think I now need to reply to their letter in response to s77 request which held very little if no information and none at all about how long it would take for them to carry out the search. If the account was assigned to them, shouldn't they already be in possession of all the documents necessary? And if they don't possess these documents how can they refer to them in their statement of claim?

[AndyOrch]

Apart from making the request...there should be no further communication with regards to a section 77/78 request...they know their legal responsibilities and consequences of not complying.

[Tesis]

Hi, we have court on Thursday. Have had no response to requests for information. Is this all I need to say on the day? Do I need or can I ask for more time? I'm aware they have failed in their duty to provide me information in order to prepare my defence adequately but is it enough for me to just say that? Feeling a wee bit anxious about it all. :/

[AndyOrch]

Well not quite you.... must reiterate as to why the court cant enforce any relief whilst the claimant is in default of your requests...look at the CCA 1974 and sections 78 and the consequences of none compliance...print it off for your day and retain with you for reference.

[Tesis]

Ok, Andy, thanks. You may remember I did receive a very brief reply to the CPR 31.14 request advising me to contact Shoosmiths in future but by that time I had already sent the S77 request to Marlin (12+2 days were up on that yesterday and heard nothing in reply) Concerned I've not communicated with Shoosmiths at all, only Marlin. Will this matter? Also, as they have replied to the CPR 31.14, albeit briefly and with no information, does this mean they have complied in a way but not fully and should I have something to hand about that also?

 

Kind regards

Tesis

[AndyOrch]

You need to define for your own sake the difference between a CPR and a section 78 CCA request Tesis

 

CPR requests are civil (Civil Procedure Rules ) used between parties to clarify the basis of a claim and the way a claim is conducted.....they are not compelled to respond or disclose...that comes later in the procedure just before trial and after defence submitted.

 

Whereas a CCA section 78 request is a legal request which they must comply within the time frame (12 days plus service) otherwise pursuent to the CCA1974 they are prevented from seeking enforcement of any said agreement until they comply or only with the courts permission.

[Tesis]

Ok,thanks for clarifying that, didn't realise that at all. Couldn't fully understand why i needed to send s77 when i had already sent cpr. Now i understand better. Will take time to read the consequences of non compliance of s77. Is it normal to feel gut wrenchingly sick at this point?

[AndyOrch]

Yes quite normal but just remember there are no debtors prisons and worse things happen at sea and around the world with far greater consequencies...when you enter the court room just think as them as your neighbours doing their chosen profession.

[Tesis]

Words of wisdom. Thanks

[AndyOrch]

And when you look at the DJ picture him sat in a nappy

[Tesis]

Pahahaha : )

[Tesis]

Hi Andy, Feeling okayish, got my notes etc and have a fairly good understanding of it all. Just wanted to ask, if they approach me beforehand do I have to say something like without prejudice before talking to them?

[AndyOrch]

No.....just listen to anything they have to state and reserve your comments for the court room..

 

Tesis this may provide a little further ammo to read on the way...

 

 

[ATTACH]52371[/ATTACH]

 

Best of luck keep cool and seize the moment.

 

Regards

 

Andy