Arrow/Restons Claimforn - old First Direct overdraft debt'

[molly2]

Name of the Claimant ? Arrow Global Limited

Date of issue – 13/07/2016

 

What is the claim for –

1.The Claimant claims payment of the overdue balance due from the Defendant under a contract between the Defendant and HSBC dated on or about Jul 26 2003 and assigned to the Claimant on Feb 26 2013

 

PARTICULARS a/c no – xxxxxx/xxxxxxxx

 

DATE ITEM VALUE

15/03/2016 Default Balance 3500.00

Post Refrl Cr NIL

 

TOTAL 3500.00

 

What is the value of the claim? £3700

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Overdraft. However, according to Restons, HSBC consolidated a Credit Card into the Overdraft before they sold the debt on to Arrow Global.

 

When did you enter into the original agreement before or after 2007? Before (2003)

 

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. Account assigned to Arrow Global who issued claim in July 2016

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? No

 

Did you receive a Default Notice from the original creditor? I can’t remember

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No

 

Why did you cease payments? Ran out of money so stopped debt management plan

 

What was the date of your last payment? June 2014

 

Was there a dispute with the original creditor that remains unresolved? No

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Yes I was in a debt management plan from 2008 to 2014

 

Upon receiving the claim in July 2016, I submitted CPR and got a fairly unhelpful response,

they said, “You would have been provided with a copy of the contractual Terms and Conditions at the time the overdraft facility was opened and hence we see no reason why you now require an additional copy.”

 

I submitted my defence on time, which was as follows :-

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant 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.

 

2. The claim is denied with regards to any amount due under an agreement. The Claimant/Solicitor has refused to disclose any agreement or statements on which its claim relies upon.

 

3. I am unaware of any legal assignment the claimant refers to within its particulars and deny the notice was served pursuant to the Law of Property Act 1925.

 

On receipt of this claim I requested information pertaining to this claim from the Claimants Solicitors by way of a CPR 31.14.

To date I have yet to receive the requested paperwork.

 

Therefore with the courts permission the Claimant is put to strict proof to:

(a) Show and disclose how the Defendant has entered into an agreement; and

(b) Show and disclose how the Claimant has reached the amount claimed for;

© Show how the agreement(s) were breached/ terminated to allow the claimant relief;

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

 

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

 

5. On the alternative, as 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. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Restons have now responded with the following 2 letters in August and September.

 

In the September letter, they mention that the amount claimed is an Overdraft consolidated with a Credit Card. However, the original claim was under the single Overdraft account number.

 

Still no sign of any Contractual Terms and Conditions at the time the overdraft facility was opened.

FD Aug 23.pdf

FD Sep 20.pdf

[dx100uk]

usual rubbish from rectums to unsettle and intimidate a defendant then

can be seen in numerous threads concerning rectum claimforms here on cag.

 

this is the usual HSBC managed loan debacle

whereby they either create a loan of the OD and any other cards/loans

then within a short period of time

dump it all back into the current account creating a massive overdraft and then flog in on.

 

so whatever happens, as rectums have now admitted to it

they'll have to come up with the CCA for the credit card too as they've ack'd that its a non CCA and a CCA debt merged.

 

typically this goes nowhere bar willy waving as you are getting.

 

the claim is well stayed

unless/until they pay more money to lift the stay

the next move is theirs

 

have your sent HSBC an sar to get everything they hold on you?

 

who was the DMP with?

 

dx

[molly2]

DMP was with Payplan

 

I will get another SAR off to HSBC (last time I tried they said my signature didn't match the one they had on record)

 

Who shall I send a cca request for the credit card to ?

Restons always reply that they are a firm of solicitors not a creditor.

To Arrow Global then, with a copy to restons ?

[dx100uk]

good I hope PP got all interest frozen & penalty charges stopped?

 

 

CCA request goes to the claimant.

 

 

as for the SAR

read the FULL THREAD

and inc list of old addresses and a CTAX copy if you've moved since takeout of either.

 

 

dx

[molly2]

Arrow took their time to reply to the section 78 request - about 3 months, so January 2017

 

They have totally ignored the 16 digit credit card account number in my request, instead putting the current account number on their reply and returning the £1 saying it's an overdraft so no executed agreement.

 

I'm just wondering are they correct that they are not the creditor ? It was HSBC that merged the credit card into the overdraft back in 2008, long before it was assigned to Arrow Global in 2013.

 

Roll forward to March 2017 and Restons have now served Arrow Global's application for a strike out of my defence (in post 1) without a hearing. It's clear from their exhibits that HSBC have merged an overdraft and a credit card but they don't seem to care!

 

So just wait to hear from the court now ?

Arrow FD Jan 2017 CCA reply.pdf

[dx100uk]

latest letter please

[molly2]

Here's the covering letter with strike out form. There's also a five page witness statement and seven exhibits which I haven't scanned yet.

Reston Mar 2017 N244 Strike out.pdf

[dx100uk]

please do

but for ref:

http://www.consumeractiongroup.co.uk/forum/showthread.php?469544-Arrow-Reston-claimform-M-S-Credit-Card-debt-well-sb-d

[molly2]

Here's the notice from the court of the date of hearing, the witness statement and exhibits 1 and 4.

 

 

Exhibits 2 and 3 are just transaction statements printed off a computer system. Exhibit 5 appears is communications from Restons which I haven't had the chance to redact. Exhibits 6 and 7 are requests for judgment and statement of costs.

 

 

I assume I am now entitled to file and serve my own witness statement, up to 7 days before the court date, if I think that will help my case.

FD SJ application.pdf

[dx100uk]

14 days is it not>

[AndyOrch]

14 days is it not>

 

No ....7 days for an application for Summary Judgment /Strike Out defence

[molly2]

Draft witness statement as follows. I tried to adapt one I found on here (thanks Andyorch) but had to make quite a few changes. I think I have covered everything I can think of, but does it still hang together as well ?

 

 

I, FULL NAME, will say as follows:

 

1. I am the Defendant in this case.Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief.I make this statement in response to the Application Notice dated 22 March 2017 of the claimant. I have used the same numbering as the Claimant’s witness statement attached to the Claimant’s Application Notice.

 

2.The Claimant claims monies outstanding under an overdraft facility. However three of the Claimant’s exhibits also refer to an account number of a running-account credit agreement, with a balance of £654.40, which the Claimant is said to have ‘consolidated’ into the overdraft facility (AHL 2 p.9, AHL 4 p.1 and point 3 of the letter dated 22 September 2016 in exhibit AHL 5).Accordingly, the Defendant sent a formal request pursuant to section 78 of the Consumer Credit Act 1974 to obtain documentation relating to the running-account credit agreement now covered by this claim.This request and the Claimant’s response are shown in Exhibit 1. The court should note that the Claimant has failed to provide the information required under Section 78 (1) of the Act, and therefore

Section 78 (6) (a) applies. Therefore the Creditor is not entitled, while the default continues, to enforce the amount of £654.40 as listed on AHL 2 p.9.

 

3. It is admitted on receipt of the Claim Form I did request information pursuant to CPR 31.14, in particular to show how I entered into a contract with HSBC. In particular, I requested to see the overdraft facility confirmation and Terms and Conditions pursuant to section 61B of the Consumer Credit Act.

 

4. Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

5. Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

6. I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

 

7. The Defendant asked the court to put the Claimant to strict proof to show and disclose how the Defendant has entered into an agreement. No such disclosure has been forthcoming.

 

8. Simply stating in their reply to the Defendant’s CPR 31.14 request that the Defendant would have been provided with a copy of the contractual Terms and Conditions at the time the overdraft facility was opened and hence we see no reason why the Defendant now requires an additional copy is purely an attempt on behalf of the Claimant to avoid its responsibilities in proving its claim or rather that they do not hold any proof and are not expected to validate their claim legally.

 

9. As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

 

10. The Claimant’s Solicitors have admitted they allowed the Claimed to become stayed automatically as they did not have account documentation from the original creditor. After failing to provide any evidence that the Defendant has entered into an agreement or contract, it is my opinion that the Claimant’s claim is fanciful, contains no proof, and is uncorroborated. Totally unaware of the details of a debt they have purchased and expecting judgment/relief to be granted, relying on the court to base its decision on assumption and balance of probabilities.

 

11. It is therefore submitted that the Claimant be ordered by the court to quantify,verify, substantiate and disclose all evidence relied upon in their particulars of claim and should the claimant fail to, that their claim be struck out under CPR 3.4 as having no basis.

Edited May 8, 2017 by Andyorch
small edit on 10

[dx100uk]

i like that!

 

 

dx

[AndyOrch]

Just a slight edit on your point 10 molly

[molly2]

A few days before the court date, I received Restons revised costs schedule, which amounted to over £1000 all in including the costs of issuing the claim and the set aside fee. Restons also asked me to ensure I attended which I did.

 

The judge dismissed Restons application to strike out my defence.

 

 

He saw straight through their attempt to circumvent a more detailed examination of the case (mentioned intimate details required in CPR 31.16 I think), in a small claims court.

 

the case has been allocated to small claims track with a time estimate of 90 minutes.

 

The court has asked that I file and serve a written statement of the evidence in support of the defence, and copies of any documents I propose to rely on at the hearing.

 

I think I can pretty much send the same points I mentioned in my witness statement for the strike out hearing.

 

Should I also perhaps mention Restons attempt to use the strike out procedure on my defence in an attempt to avoid disclosure of documents relied upon in the case ?

[AndyOrch]

Well done molly.....ouch Restons.

 

Serves them right for trying to circumvent the claims procedure...put them to strict proof they go for summary judgment...decent judge.

 

Discontinuance next given their first trick failed:wink:

 

It will be a similar statement molly..but no need to reference what has just happened..the judge is aware.

 

Andy

[molly2]

Thanks Andy. Here's a draft, only points 1(type of hearing), 2 and 4(tense) and changed. I tried to change 2. to avoid inadvertently admitting a consolidated credit card debt. What do you think ?

 

 

1. I am the Defendant in this case. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief. I make this statement in support of the defence as requested in the General Form of Judgment or Order in this case dated 19 May 2017 from the County Court at such and such town.

 

2. The Claimant claims monies outstanding under an overdraft facility. However the Claimant’s solicitor wrote to the Defendant on 22 September 2016 referring to a further debt owed to HSBC, which HSBC is said to have ‘consolidated’ into an overdraft facility (Exhibit AA1). Accordingly, the Defendant sent a formal request pursuant to section 78 of the Consumer Credit Act 1974 to obtain documentation relating to this account. This letter from the Claimant’s solicitor, the request from the Defendant and the Claimant’s response are shown in Exhibit AA1. The court should note that the Claimant has failed to provide the information required under Section 78 (1) of the Act, and therefore Section 78(6)a applies.

 

3. It is admitted on receipt of the Claim Form I did request information pursuant to CPR 31.14, in particular to show how I entered into a contract with HSBC. In particular, I requested to see the overdraft facility confirmation and Terms and Conditions pursuant to section 61B of the Consumer Credit Act.

 

4. Given that at that stage the claim was trackless and not allocated, CPR 31.14 did apply and the Claimant was required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

5. Given that the Claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

6. I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

 

7. The Defendant in his defence asked the court to put the Claimant to strict proof to show and disclose how the Defendant has entered into an agreement. No such disclosure has been forthcoming.

 

8. Simply stating in their reply to the Defendant’s CPR 31.14 request that the Defendant would have been provided with a copy of the contractual Terms and Conditions at the time the overdraft facility was opened and hence we see no reason why the Defendant now requires an additional copy is purely an attempt on behalf of the Claimant to avoid its responsibilities in proving its claim or rather that they do not hold any proof and are not expected to validate their claim legally.

 

9. As per CPR 16.5(4) it is expected that the Claimant prove the allegation that any money is owed.

 

10. The Claimant’s Solicitors have admitted they allowed the claim to become stayed automatically as they did not have account documentation from the original creditor. After failing to provide any evidence that the Defendant has entered into an agreement or contract, it is my opinion that the Claimant’s claim is fanciful, contains no proof, and is uncorroborated. Totally unaware of the details of a debt they have purchased and expecting judgment/relief to be granted, relying on the court to base its decision on assumption and balance of probabilities.

 

11. It is therefore submitted that the Claimant be ordered by the court to quantify, verify, substantiate and disclose all evidence relied upon in their particulars of claim and should the Claimant fail to, that their claim be struck out under CPR 3.4 as having no basis.

[AndyOrch]

Yes ...fine...I think we need to throw into the mix a paragraph re recall and termination ..... The Demand/Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974 and put them to strict proof that FD actually followed this procedure.

[molly2]

Restons provided this copy of a final demand notice - is that what you want to put them to strict proof for ?

FD Final Demand.pdf

[AndyOrch]

Thats invalid it should be headed " Notice served under Sections 76(1) and 98(1) of the CCA1974 "

 

And payment should be within 14 days not 7

[molly2]

How about this for a new paragraph to follow paragraph 2 then ?

 

3. The Claimant’s solicitors letter of 22 September 2016 in Exhibit AA1 also attaches a Final Demand sent to the Defendant on 1 October 2008. This does not provide a valid termination the account as it is not headed "Notice served under Sections 76(1) and 98(1) of the CCA1974 " and it requires payment within 7 days rather than the required 14 days. Accordingly the Defendant asks the court to put the Claimant to strict proof that the account was terminated correctly under Sections 76(1) and 98(1) of the CCA1974 to allow the claimant relief.

[AndyOrch]

Yes that should suffice