HFC/Weightmans - old Marbles card debt - Statutory Demand withdrawn now claimform

[bennieee]

Thank you again for your help

[bennieee]

Hi, is there anyone who cna help me complete this form

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

 

It is to have a stat deman set aside. I have all the details of what to put for the defense but am really confused, especially by the first bit about the registrar.

 

I wondered if there is anyone who can complete a mock up of the form with fake addresses etc as a template?

[powelll]

Can I just ask - who has issued the SD against you?

[linz2011]

any update on this? how did you go on?

 

Linz:)

[bennieee]

Hi all, I wondered if it was possible to help me with a claim form that I recieved this morning. It is stamped by the court and dated the 12th Oct but because of the postal strikes the date on the envelope is the 23rd Oct.

 

I understand that there is 14 days to acknowledge the form - is this from the postmark or the date on the form?

 

I sent a CCA request to the company and they sent an application form back. There are however in the court form details, a copy of t and c that have never been sent to me.

 

There are some descrepancies in the details on the form in that they are saying that I made a payment to them of £1.00 where in fact this is the fee that I sent for the CCA.

 

There are charges contained in the amount oweing and I really need to know where to go from here.

 

The company concerned has already sent a SD which I defended.

 

I also have here a copy of the info that they sent in return to the SAR request that I sent.

 

Thanks in advance

[tomterm8]

Hi all, I wondered if it was possible to help me with a claim form that I recieved this morning. It is stamped by the court and dated the 12th Oct but because of the postal strikes the date on the envelope is the 23rd Oct.

 

I understand that there is 14 days to acknowledge the form - is this from the postmark or the date on the form?

 

it is from the "deemed service" date, which I think is 5 days after the date on the form. However, I would acknowledge service today on MCOL, saying you'll defend all the claim.

 

I sent a CCA request to the company and they sent an application form back. There are however in the court form details, a copy of t and c that have never been sent to me.

 

Have you posted what they sent you to the credit agreement thread, or asked peter bard to look at it?

 

There are some descrepancies in the details on the form in that they are saying that I made a payment to them of £1.00 where in fact this is the fee that I sent for the CCA.

 

Cool

 

There are charges contained in the amount oweing and I really need to know where to go from here.

 

Have a look at http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html

 

The company concerned has already sent a SD which I defended.

 

I also have here a copy of the info that they sent in return to the S.A.R - (Subject Access Request) request that I sent.

 

Thanks in advance

 

Can you:

 

1. Post their particulars of claim (minus personal details)

2. Post their Credit Agreement

3. Post how many charges they have made to the account

[clutchingatstraws]

Congratulations on the pink Tom

 

Can you look in on http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/118349-citicard-cabot-financial-hodsons.html

 

I think it needs your expertise

 

Cheers

 

Cas

[bennieee]

Thank you so much for the response. I am currently working through all the points and have had a good look at the info on the thread that you wrote - it is brilliant information, thank you.

 

it is from the "deemed service" date, which I think is 5 days after the date on the form. However, I would acknowledge service today on MCOL, saying you'll defend all the claim.

 

I have looked at this site however the claim form was not issued by Northampton, it came from Liverpool - where I believe they had a lot of additional postage strikes and therefore the reason that it only arrived today.

 

I will therefore phone the court on Monday to find out the dates that everything need to be in to them by.

 

Have you posted what they sent you to the credit agreement thread, or asked peter bard to look at it?

 

I received this in response to the CCA request 

This was received from the solicitors in response to the CCA request that I sent, I did not receive anything from the company concerned but did get a response to the SAR that I sent to them.

 

These are the details that I sent to the court to have the SD set aside

 

I am seeking a set-aside of the Statutory Demand, on the basis that the alleged debt is disputed. I sent a request to the Claimant on (insert date) by special delivery, under section 78 of the Consumer Credit Act 1974, for a copy of a credit agreement that the purported debt refers to. I received a reply from the Claimant's Solicitor on (insert date) in which they state a copy of the alleged agreement was enclosed. The document furnished on behalf of the Claimant, is a copy of an application form, it is not a credit agreement, as it does not contain any prescribed terms, which it must possess to be enforceable. The Court is therefore precluded from enforcing such a document under section 127(3) of the Consumer Credit Act.

 

Within the court form that I have received today, there are however t and c which look different from the application form - the application is smaller in size and has a different print on it if that makes sense, it just looks as aif a copy of any t and c has been attached to the form. I have sent Peter a PM to see if he has the time to take a look for me and will let you know.

 

The Particulars of the claim are;( I have typed these as written on the form as I thought once I had 'whited' bits out etc it would take the same time

 

1. The Claimant is a private limited company, registered under {company number.....} and trading as a financial institution. The Claimant provides various financial service to consumer, which include a credit card service operating under the trade name of 'Marbles'

 

2. By a credit card agreement {date....} ("the Agreement") the Claimant and the Defendant entered into a contract for the provision of credit services and the Defendant was given a marbles credit card by the Claimant to purchase goods and/or services under account number....... A copy of the original agreement is attached to these Particulars of claim marked 'A'.

 

3.Pursuant to Clause 6 of the Agreement the Claimant agreed to send monthly statements to the Defendant showing all debits and credits made to her Marbles credit card account in the period since the previous statement.

 

** as a note on this bit, I had numerous problems with receiving statements, I spoke to them a lot of times as statements did not arrived and quite often they said that they sent copy statements that also did not arrived

 

4.Pursuant to Clause 5 of the Agreement the Defendant agreed to pay to the Claimant, within 21 days of receiving the monthly statement, the greater of 3% of the balance shown on the statement to be due or £5.00(or if the balance if it is les (this typo is on there- all the rest are mine.) than £5). This minimum payment required was clearly stated in the monthly statements sent to the defendant and, upon receipt of each and every monthly Statement, the defendant was put on notice as to the minimum payment they were obliged to pay under the Agreement.

 

5. Also pursuant to Clause 5 of the Agreement, if the Defendant did not pay the full balance due as stated on the monthly statement by the 21st day after the statement date, interest was then payable by the Defendant to the Claimant on the unpaid balance.

 

6 Since {date...} the Defendant has used the marbles credit card to purchase goods and/or services In accordance with clause 6 of the Agreement, the Claimant has sent monthly statements to the Defendant detailing the transactions that the Defendant has made in the period since the last monthly statement and the minimum payments to be made as well as the total balance outstanding on the credit card account.

 

continued...

 

7. In or around {date...} the Defendant breached the terms of the agreement by failing to make the monthly payment specified in the monthly statement sent to her, therby breaching Clause 5 of the Agreement. The defendant continued to breach Clause 5 of the Agreement by failing to make payments in {month month then a gap of a month, month month then a gap of two months , month month}.

 

8. Accordingly, on {date...} the Claimant sne the Defendant a Default Notice pursuant to Section87(1) of the Consumer Credit Act 1974. A copy of this Default notice is attached to these Particulars of claim marked 'B' The defualt notice informed the defendant that they had breached the terms of the agreement by failing to pay minimum payments totaling {£amount}

 

9. The default Notice notified the defendant that unless she paid {£amount} by {date...} then the Claimant may take the following action against her.

 

a. Terminate the Agreement on {date...}

b. Require the immediate payment on {date...} of the entire outstanding debit balance of {£amount...};and

c. If the whole or any part of each sum was not then recieved, issue Court proceedings for the entire balance plus any accrued interest and costs.

 

10. The Defendant did not make the payment of {£amount} by {date...} Accordingly, the full outstanding balance of {£amount} became payable and due on that date. The Defendant has failed to pay the outstanding balance of the credit card account on this date and the balance remains due and outstanding. The Defendant made a payment of £1.00 to the claimant on {date...}

 

*** this was for a cca request, it was not a payment, it was sent with a letter as per the template on this site

 

11. The curent balance of the credit card account due and owing from the Defendant is {£amount}

 

12. The Claimant seeks statutory interest at 8% per annum under section 69 of the County Courts Act 1984 on the sum of {amount} from {date} 9this being the date when the balance of {amount} became immediately repayable) to {date} ammounting to {amount} and continuing at a daily rate of {amount} per day until judgement or earlier payment.

 

13. Alternatively the Claimant seeks interest at such rate and for such period as the court sees fit.

 

and the claimant claims

 

the total sum of {amount}

interest as aforesaid

costs.

 

there is then a statement of truth from the solicitors.

 

I am just about to work out the charges and will post these when I have done.

 

I will also compose a letter as per the thread that you gave to send to the claimant.

 

thanks again for the help

 

I used the spreadsheet on the site to calculate the charges and with interest they total 889.41.

 

I also checked and have found another copy of the above application that was sent by marbles with a letter saying thank you for your request for the t and c.

 

There were no t and c just the above form.

 

On further inspection of the t and c that are in the claim form, the interest rates differ to the ones that are on my initial statements so would suggest that they are not my t and c

application form.pdf

[Peterbard]

HI

This won't wash

 

The agreement regulations1983/1553 say that all the schedule one information should be contained "within the agreement" not on a sepperate document headed t and cs.

All the prescribed terms are contained within scheduole one therfore this is unenforceable.

Ther can be no linking from the signature document to external documents containng details that should be within the agreement so any mention of you should read T and cs located elswhere are in breach of the act have a look at my agreement enforceablity thread.

 

Best reagrds

peter

[bennieee]

Thank you Peter for your help. I have today phoned the court and the date of service that they have has been postponed greatly due to the postal strikes in the area. I am going to send the acknowledgement of service to them today.

[PriorityOne]

Your CCA looks like the "priority Application" that it is... with no APR/credit limit on there.

 

What are they hoping to do with this in court then ?....now they know that you're defending it.

[diskmandave]

What are they hoping to do with this in court then ?....now they know that you're defending it.

I was thinking along the lines of novelty toilet paper maybe ??

 

Use it for a job that demonstrates its true value!

[bennieee]

Yes I think that they are. I have requested the information as per the thread that Tomterm pointed me very kindly to so will wait and see what transpires...

[bennieee]

For various reasons, I have not been around, I wondered if someone was able to have a look at my defense - it is due to be submitted by friday according to the court.

 

It is mainly taken from a previous defense that I found on here that was written by Laiste, do you think that it suitable to use?

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim or at all. It is averred that the Claimants have commenced these proceedings unlawfully and vexatiously, having failed to prove that a credit agreement exists between HFC and myself. On the (insert date), I sent a request for a copy of the alleged credit agreement to both the Claimants and the HFC bank enclosing for each request, the requisite £1.00 fee, by recorded delivery. It was received by HFC on the (insert date) and the Claimants on (insert date). On the (insert date), the Claimants provided what they have stated is a copy of a credit agreement. HFC did not respond. The document furnished however, is a copy of an application form, which is not a credit agreement. The document provided does not accord in form and content with sections 60 and 61 of the Consumer Credit Act 1974, or the Consumer Credit (Agreements) Regulations 1983, which stipulates the fundamental requirements for credit agreements. Specifically, the application form does not contain the prescribed terms of the alleged credit agreement; and given that the Claimants are asserting that the document furnished on the (insert date), is a copy of the purported agreement, the fact that said document does not detail any prescribed terms, renders the alleged agreement entirely legally unenforceable and these proceedings are completely unfounded.

 

The request for the alleged credit agreement was made under section 78(1)running account credit, of the Consumer Credit Act 1974. The prescribed time limit for furnishing a copy of the alleged credit agreement is twelve working days from receipt of the request, as stipulated in Regulation two of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. HFC and the Claimants were legally obliged to furnish a copy of the alleged credit agreement by the (insert date). The Claimants supplied a document on the (insert date), which was not a copy of the alleged credit agreement. Accordingly, having failed to produce a credit agreement within the requisite timescale, or at all, the Claimants were in default as of the (insert date). Furthermore, under section 78(6)(b) of the Consumer Credit Act 1974, the Claimants committed a criminal offence as of the (insert date), as the default had continued for a period of one month. The Claimants continue to commit an offence as they have never produced a credit agreement. HFC have issued a Court claim without having any proof that a credit agreement exists. I would therefore contend that the Claimant’s conduct amounts to unlawful harassment.

 

No Default Notice has ever been received by the Defendant prior to the termination of the alleged agreement. If HFC contends otherwise, the Defendant puts the Claimant to strict proof that such a document was received.

 

The Claimants have included a collection charge in their particulars of claim in the amount of £amount. This amount is a penalty charge and is unlawful at Common Law, under the Unfair Contract Terms Act 1977 and is a breach of The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants are not entitled to claim interest as detailed in their particulars of claim, as they have not furnished a credit agreement to prove that any contract exists between HFC and myself.

 

 

Should I mention that the payment that they speak of was not a payment but rather a fee for the CCA request, and is it okay to separate the claimants as being the solicitors and the HFC as a separate entity in the defence?

 

I also had huge issues with statements that were not received from them and phoned them numerous times to advise them, should I mention this?

 

I have not received a reply to my letter sent requesting information

 

Thank you for all the advice given so far, it really is appreciated.

[pt2537]

Hi There

 

i personally feel the defence could do with a few tweaks and additions

 

when does the defence have to be in exactley?

 

regards

paul

 

Between us we can surely write a defence to get this action thrown out , however my only concern is that it is possible the defecne we come up with may be too big for MCOL so it will need to be a paper document sent to the court by special delivery

 

there is so much missing from this defence IMHO and i feel its is in your best interest to give em a knock out blow rather than a slap and tickle

 

we will get our heads together and see what we can come up with

 

regards

paul

[Edz11]

It does need tweaking. And there isn't sufficient stress on 127(3) not being complied with.

 

What happened with the SD after you'd apllied to have it set aside?

[bennieee]

Thank you for the help, the SD was returned intially by the court as they said that the claimant no longer wanted to persue it. I then received a letter from the solicitors who advised that they had decided that it was not financially viable for them to proceed so had decided not to go ahead after I submitted the set aside forms.

 

The defence needs to be at the court by 4pm on Friday, I have just called and double checked this with them. They will not accept a file online, it needs to be SD to them anyway.

[Edz11]

Can you confirm that you have a notice in writing from the creditor that the SD is withdrawn? Cos if you haven't then it isn't...

[bennieee]

Yes, I had confirmation from the solictors who sent the SD originally that they have withdrawn it.

[pt2537]

I should have the defence posted either tonight or tomorrow morning

 

 

regards

paul

[pt2537]

can i ask, was there a default notice attached to the claim form that came through?

 

if there was can you post a copy of it on here please

[bennieee]

thank you so much for your help Paul, so sorry for the delay, I had to borrow a scanner. This is the notice that they sent

 

 

 

This is the form that is within the court claim form, I have checked but have no record of one that was sent directly to me.

[pt2537]

Ok well

 

that looks ok on the face of it

 

can i ask if there was a copy of the credit agreement attached? also if there was, was it the same document as what they sent you in response to your cca request? was there anything else attached to the claim form in relation to documents?

 

also did you make a disclosure request under the Civil Procedure Rules? if not dont worry

 

sorry about the questions but im trying to get a defence up together for you

 

regards

paul

[bennieee]

Yes, the credit agreement is another photo copy of the one that I posted previously. There is behing a separate copy of a set of t and c but having inspected them, they do not belong with the 'cca' that they sent as they have a different typeface and the rates and figures are random - if that makes sense.

 

I sent a letter to the solicitors as per the template that tomterm kindly pointed me in the direction of - it was a copy of this one http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html but did not gain a reply.

[pt2537]

Cool

 

ok then weve got them,

 

 

 

bear with me, its late now and i am going to call it a day shortly so i will get straight on this in the morning, suffice to say i feel there is more than sufficient grounds here to ask the court to throw their case out

 

regards

paul