Cabot/mortimer Claim form - Halifax OD

[AndyOrch]

Post it here when your ready dub.

 

Andy

[windswept19]

Thank you, will do.

[windswept19]

Here's my first draft, any good?

 

Particulars added for cross reference only

 

1."Monies due under current account overdraft. The Claimant's claim is for the balance outstanding under a bank account facility halifax agreed to maintain for the Defendant.

2. It was a term of the Bank account that any debit balance would be repayable by the Defendant in full on demand. The Defendant has failed to repay the amount due.

3. The debt was assigned to the Claimant.

 

THE CLAIMANT THEREFORE CLAIMS 1280.29 2. Costs

 

Defence

 

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 Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

 

3. Paragraph 1 is noted and it is accepted insofar that I have once held a contractual relationship with Halifax Bank.

 

4. Paragraph 2 although noted it is denied that the Halifax ever served a Notice pursuant to 76(1) and 98(1) of the CCA1974. The claimant is put to strict proof thereof.

 

5. Paragraph 3 although noted it is denied that neither the Halifax nor the assignee ever served a Notice of Assignment pursuant to Section 136 of the Law of Property Act 1925 and 82A of the Consumer Credit Act 1974.The claimant is put to strict proof thereof.

 

6. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 24 May 2018 namely the Facility Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request but has made a response with regards to a section 77/78 request not being applicable to current accounts which was never requested.

 

7. I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed 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.

 

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

 

Therefore the claimant is 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 pursuant to 61b(3) CCA1974

(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 and show how the Claimant has reached the amount claimed

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

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

 

9. 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.

 

 

 

 

Thank you in advance.

 

Regards

Edited June 21, 2018 by Andyorch
tweaked.

[windswept19]

Sorry, sent the wrong thing!

[AndyOrch]

I have made a few tweaks above to suit your particulars of claim.

 

Regards

 

Andy

[windswept19]

Thank you. I have incorporated your tweaks as below:

 

Defence

 

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 Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017. It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

 

3. Paragraph 1 is noted and it is accepted that I have once held a contractual relationship with Halifax Bank.

 

4. Paragraph 2 although noted it is denied that the Halifax ever served a Notice pursuant to 76(1) and 98(1) of the CCA 1974. The Claimant is put to strict proof thereof.

 

5. Paragraph 3 although noted it is denied that neither the Halifax nor the assignee ever served a Notice of Assignment pursuant to Section 136 of the Law of Property Act 1925 and 82A of the Consumer Credit Act 1974. The Claimant is put to strict proof thereof.

 

6. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 24 May 2018 namely the Facility Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request but has made a response with regards to a section 77/78 request not being applicable to current accounts which was never requested.

 

7. I refute the Claimant’s claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed 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.

 

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

 

Therefore the Claimant is 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 pursuant to 61b(3) CCA 1974;

 

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA 1974 Demand/Recall Notice and Notice of Assignment;

 

© Provide a breakdown of their excessive charging/fees levied to the account and show how the Claimant has reached the amount claimed;

 

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

 

(e) Show how they have complied with sections III and IV of Practice Direction – Pre-action Conduct.

 

9. By reason of the facts and matter set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Thank you in advance

Regards

[AndyOrch]

[windswept19]

Thanks a million for your help.

 

Regards

[windswept19]

Do I need to sign the defence or include a statement of truth?

 

Many thanks

[AndyOrch]

Do I need to sign the defence or include a statement of truth?

 

Many thanks

 

No...assume you are submitting through MCOL Northampton on line.

[windswept19]

Yes, my password wouldn't work so they gave me an email address to send it to.

 

[email protected]

 

Regards

[windswept19]

Hi, I received this email from the court just now:

 

"Thank you for your reply to the County Court claim.

 

 

We have processed your response; please note however that it was not signed and because of this it may not be considered as a valid document if the case goes to a court hearing.

 

 

Please find enclosed a copy of your response, to be signed and returned to us as soon as possible."

 

 

There was no enclosure with their email. Should I just resend it, signed?

 

Thanks

[dx100uk]

Yes

[windswept19]

THank you DX.

[windswept19]

Hello again,

 

I have received a letter from the court as follows:

 

"I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

 

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim wil be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay".

 

I have also received the following from Mortimore Clarke:

 

"We have received your recent correspondence.

 

We are taking our client's instructions in relation to your correspondence and will come back to you as soon as we can. In the meantime, the matter has been placed on hold".

 

What happens next? Presumably, it's a matter of waiting now.

 

thanks in advance

[dx100uk]

The court letter tells you!

[AndyOrch]

" In the meantime, the matter has been placed on hold".

 

Nothing is on hold...its their choice if they wish to proceed or let it stay.

 

 

Andy