JCI/BW Claimform - old Omni Capital Retail Finance Loan for Training program but provider went bust

[clarity99]

Hello again

I have a new situation that has completely thrown me.

 

JC Aquisitions bought a disputed debt for a fixed term loan. The Loan was to pay for training that never happened as the training provider went into liquidation before delivering anything; the loan was paid directly to the training provider.

 

When the lender began chasing for their money it was disputed (as no goods/services had been provided) and a complaint filed- but they didn't uphold it.

 

Move on 6 months and JC Aquisitions come on the scene and are now pursuing this through the small claims route.

 

My question is when they bought the debt (for pennies on the pound) as well as getting the "Rights and Benefits" of the agreement  do they not also take on the "obligations"- ie do they not have to provide the services that the loan had paid for but weren't delivered? They say not!

 

thank you

C

 

 

Edited January 28, 2022 by clarity99

[AndyOrch]

Topic moved to Financial Legal Issues Forum.

 

By pursuing do you mean you have actually received a court claim ?

 

Andy

[clarity99]

Hi Andy,  yes- its at the bundle stage!

 

They've denied they have any "Obligation" but claim "all of the Rights and Benefits". Have I mistakenly believed as the debt owner, they have the same obligation to provide the training?

 

They've sited "Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd"  but that is a property building and is not covered by the CCA.

 

As another quirk, I should also say they're suing me under my  first and middle name. From the outset and even during mediation, I had pointed out they needed to re-issue the claim  (where I would also include a counter-claim for the training)..... but that was ignored.  County Court Bulk Centre "advised" it should have been re-issued.

 

thanks for getting back to me so quickly

 

C

 

 

Edited January 28, 2022 by clarity99

[dx100uk]

please complete this

 

 and post up the defence you filed

and their WS too.

 

did you send CCa request and CPR too?

[clarity99]

Hi DX

I will get onto the claim and defence, but the WS runs to 80 pages and would take an age to redact.

 

Sorry DX I know its a bit Cheeky, but I was hoping for a quick opinion on "all of the Rights, Benefits and Obligation"   vs  just "all of the Rights and Benefits"   ......    I couldn't find it anywhere. 

 

There is Section 75 protection with the original lender, but does that transfer with the new debt owner?

 

great work on the site.....

 

C

[dx100uk]

the training is nothing to do with them

and you should not ever be counterclaiming.

 

if the original providers case was so strong why didn't they take you to court and crush you as they do in numerous threads here>?

 

get that sticky done please so we know the players and their cards. and get your defence up.

 

to me, sadly you've gone down the wrong route here in defending what is a simple loan claim by a debt buyer, we see JCA/I all the time here and we beat them even in PDL loans with full paperwork

 

dx

 

 

 

[mantis shrimp]

I would want to know more about the original arrangements, and in particular the relationship (if any) between the training provider and the original lender. If this can be shown to come within sections 11 and 12 of the Consumer Credit Act 1974, then section 75 may give defence. This would be on the basis that the lender is jointly and severaly liable for the training provider's breach of contract. 

 

So dig into that. Was the lender introduced by the training provider, e.g. as a way of arranging finance for course fees? 

[clarity99]

Thanks DX, but as always- left it to the last minute and this is an excellent group, but it wasn't my call at the time.

 

Yes Mantis Shrimp, the training provider completed the loan application and it was digitally signed online at the point of sale; the Lender's Agreement (OmniCapital) includes "Linked Agreement" that provides for suing "  us (Lender) , the supplier (Training Provider), each or both" in the event the goods or services are unsatsfactory or not provided.

 

C

[clarity99]

Also CCA and DPA requests went in to both lender and debt purchaser. The latter passed this down the line to the original lender.

 

There is an outstanding S77 request on JC Aquisitions, which should have prevented them pursuing this, but if they produce this before the hearing, then it can go ahead.

 

[dx100uk]

Who has said that to you? Thats not correct. 

 

Dx

[AndyOrch]

Until we see the particulars of claim ...your response defence/witness statement and a brief explanation of how the debt arouse/failed timeframe its really pointless posting anything further or even trying to to consider and explain the legalities of Benefits and Obligations within an agreement.

 

A bit like asking us what do we think of this book and you only gave us the last chapter 

 

Flesh your topic out.

 

Andy

[clarity99]

 

Which Court have you received the claim from ? MCOL Northampton N1

 

 

If possible please scan redact and upload a full page copy of page 1 of the claim form. (not the response page or AOS)

 

 

Name of the Claimant ? JC International Acquisition

 

Date of issue –  17 Nov 2020

 

Particulars of Claim

 

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

 

1.The Claimant's Claim is for the sum of £3,xxx.xx being monies due from the Defendant to the Claimant under a retail finance agreement, originally between the Defendant and OMNICapitalRetailFinance under account reference xxxxxxxx.

2.The Agreement is regulated by the Consumer Credit Act 197 4 and the rights, benefits and title to the agreement were assigned to the Claimant on xx/xx/xx19. Notice of the assignment has been given to the Defendant.

3.Upon the Defendant defaulting on payments due under the agreement and, despite previous demands for payment being made by the Originating Creditor and the Claimant, the Defendant remains in default of the agreement.

 

 

What is the total value of the claim? 3800
 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ? Not sure
 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? No
 

Did you inform the claimant of your change of address?

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? Loan 
 

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

Do you recall how you entered into the agreement...On line /In branch/By post ? Online
 

Is the debt showing on your credit reference files (Experian/Equifax /Etc...) ? Yes
 

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/ Debt Purchaser
 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Not immediately - No
 

Did you receive a Default Notice from the original creditor? No
 

Have you been receiving statutory notices headed “Notice of Sums in Arrears”  or " Notice of Arrears "– at least once a year ? No
 

Why did you cease payments? No payments were made- no services were provided
 

What was the date of your last payment? none
 

Was there a dispute with the original creditor that remains unresolved? Yes
 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? YesNo

 

Claim Form 17112020 - redacted.pdf Defence .pdf

Edited January 28, 2022 by dx100uk
formatting

[mantis shrimp]

I think the line I suggested may well serve you much better than that defence. 

[clarity99]

Context

 

So Shrimp took out a loan for a training course with a Provider in May 2018.

The Provider completed the loan application forms online and Shrimp digitally signed.

 

In June 2018 when Shrimp contacted Provider to undertake Training they went dark.

The Provider liquidated in Sept/Oct 2018 and Shrimp never had his Training.

 

OmniCapxx (Lender) were chasing payments but Shrimp refused, made no payments and had cancelled Direct Debit.

Lender defaulted the agreement in September 2018 and ended it December 2019 when it was assigned to JCI aqusitions (Assignee).

 

Shrimp made Assignee aware of dispute and again refused to pay as no goods/services were provided and he hadn't (directly) received any monies.

 

Assignee issued proceedings in his Christian names (first, second) but Shrimp acknowledged service anyway (!)

 

Contacted Northampton Bulk Clearing who said claim was defective and should be reissued - that was basis of defence.......

 

yes it is a rather poor defence, but it was to meet the deadline and it was expected Assignee would re-issue.

 

The agreement with the Lender is attached and it provides for suing the Lender and/or Provider.

I asked whether the Assignee should also assume those obligations.....

 

Omni Agreement - redacted.pdf

Edited January 28, 2022 by dx100uk
formatting

[clarity99]

1 hour ago, mantis shrimp said:

I think the line I suggested may well serve you much better than that defence. 

I totally agree it isn't great- but 11th hour and a genuine expectation it would be re-issued, or more to the point a hope that the defence would dissuade them from pursuing the debt!  clearly a fail

 

5 hours ago, dx100uk said:

to me, sadly you've gone down the wrong route here in defending what is a simple loan claim by a debt buyer, we see JCA/I all the time here and we beat them even in PDL loans with full paperwork

 

dx

 

Fair enough DX but I'm hoping all is not lost- what would you have done ?

[mantis shrimp]

An assignee has no better claim than the assignor had. 

 

Your defence should have made the points you say were raised in correspondence. 

Edited January 28, 2022 by mantis shrimp
add sentence

[clarity99]

as in better chance of successful claim?

 

I also thought not Mantis, until the Assignee claims they have no obligation to provide the goods/service unlike the Assignor (who from the agreement do and they accept they do) so other than the Court fees, the Assignee has nothing to loose.

 

 

 

 

 

 

 

 

Edited January 28, 2022 by dx100uk
unnecessary previous post quote removed

[mantis shrimp]

people say things that are not correct. The assignee is wrong. You would have a claim against the assignor under s75 CCA, giving you a defence by way of set-off, amongst other things. The assignee cannot be in a better position than the assignor. 

[clarity99]

Totally agree, all correspondence is about the threat of a CCJ when is Shrimp pays within 30 days, it isn't recorded (?).

So would you suggest issuing a claim against the Assignor?

Or somehow incorporate this into a witness statement and defence?

C

[mantis shrimp]

I suggest both  Part 20 claim in the existing proceedings against the assignor. 

Edited January 28, 2022 by mantis shrimp

[clarity99]

Thanks Mantis,

 

would be grateful for any suggestions on how best to address the claim being issued against Shrimps' 1st names?

 

C

[dx100uk]

2 hours ago, clarity99 said:

Date of issue –  17 Nov 2020

 

is that a year typo?

 

dx

 

[clarity99]

Claim issued 11/2020.

Mediation  09/2021

 

 

 

Edited January 28, 2022 by clarity99

[dx100uk]

Good grief so this has dragged on for 14mts with no hearings at all? Or did the org claim get stayed and this is a n244 lift and/or sj

 

 

[clarity99]

no, that's the straight line from issuing the claim, mediation last September and then a 40 minute preliminary hearing which is scheduled for week after next.

 

On the plus side its allowed Shrimp to put money aside each month in case he ends up losing (which I'm hoping he doesn't but now fearing he might without this site's help?)