URGENT: Advice needed re. Court Claim Form

[Laiste]

Hi SFU,

 

As I've previously stated, your defence is not going to be strightforward, so if you are at the 11th hour, I would suggest PMing site helpers and/or moderators to help you draft it.

 

If you acquiesce, you are going to have your credit file blighted for 6yrs, not to mention the fact that the agreement is probably unenforceable!

 

Regards,

 

Laiste.

[livelylad]

Can you post what they have done/said and also what actions you have taken. Can you explain what their POC is and what they are claiming for.

[so*fed*up]

Can you post what they have done/said and also what actions you have taken. Can you explain what their POC is and what they are claiming for.

 

Hi,

 

Their POC is:

"The claimants claim is for the balance outstanding under a personal loan agreement. The defendant(s) has/have failed to make payment of the arrears of instalments as required ny the statutory default notice served by the claimant. And the claimant claims 1. (the amount they are claiming - don't want to reveal exact amount on here due to MIB but happy to pm) 2. Interest pursuant to section 69 of the county court act 1984 at a rate of 8.000% per annum from the date hereof at a daily rate of 0.57 to the date of judgement or sooner payment."

 

The claimant is DG Solicitors.

 

As I stated earlier, all previous correspondance from DG Solicitors & Metropolitan Collection Services chasing this sum of money has my CURRENT ACCOUNT & SORT CODE as the account number.

 

I have worked out that this outstanding balance is made up of the actual amount left outstanding on my loan PLUS the overdraft amount owing on my current account with HSBC. (Incidently, this overdraft amount is almost all bank charges.)

 

They have lumped the two amounts together, and have stated on the POC that this is my outstanding LOAN amount, with no reference number given.

 

Hope this makes sense?!

 

Thanks for helping

[so*fed*up]

p.s.

 

I CCA'd DG Solicitors using my CURRENT ACCOUNT & SORT CODE as the a/c number. They replied using the current account a/c number in their covering letter, but enclosing the LOAN agreement, with the loan account number on??!!!

[so*fed*up]

Bump!

[so*fed*up]

Sorry to be a right pain folks, but I'm running out of time - I need to get the defence filed TOMORROW, as I don't think Ill be around to do it on Monday!

[tomterm8]

You're going to have to tell me...

 

(1) Who the claimant is

(2) Does the claim state the account no

(3) is the claim for the full amount of the account?

(4) Is the claimant the original creditor?

(5) can you post any notice of assignment, credit agreement etc that relates to the account?

[remus]

so*fed*up, have you done the sar?

 

 

Their POC is:

"The claimants claim is for the balance outstanding under a personal loan agreement.

 

but its not, it includes other accounts.

 

see tomterm8 is here, so hope he can help:)

 

best of luck:)

[tomterm8]

Defence

 

Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

 

The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the account number of the agreement, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

 

Further to the case On DATE I requested the disclosure of information vital to this case from the claimant, in respect of each alleged debt the Claimant has failed to produce any of the information requested. The information requested amounted to copies of the Credit Agreement and how they made up the alleged debt. This information has not been furnished in time for me to file my defence, and so I respectfully ask the permission of the court to amend this defence when and if this information is disclosed.

 

This letter requested copies of any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a list of charges applied to the account.

 

With respect to the claim,

 

The failure to provide this information, and particularly to provide a list of charges made to the account, frustrates this defence and I therefore respectfully ask that the court grants me permission to amend this defence when I have received the necessary information.

 

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

 

It is denied that I the amount claimed by the claimant is an accurate reflection of my liabilities for any personal loan agreement, and the claimant is put to strict proof thereof.

 

In respect of that this is denied, during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

The defendant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

 

Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful.

 

I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach.

 

If the claimant sent a default notice that includes unlawful penalty charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

 

Further, the claimant states that I have refused to pay sums due under agreement. In its particulars of claim, it has not explained under what terms of any agreement these sums were due and I put the claimant to strict proof that said monies are due.

[tomterm8]

You'll have to amend anything... sorry, i don't have much time today:)

[so*fed*up]

You're going to have to tell me...

 

(1) Who the claimant is

(2) Does the claim state the account no

(3) is the claim for the full amount of the account?

(4) Is the claimant the original creditor?

(5) can you post any notice of assignment, credit agreement etc that relates to the account?

 

Thank you

 

(1) The claimant is HSBC

 

(2) The claim does not state any account number

 

(3) I have worked out that the claim is for the amount owing of the loan PLUS the amount outstanding of the overdraft on my current account

 

(4) The claimant is the original creditor

 

(5) I have a copy of the credit agreement that relates to my loan account. This was sent is response to my CCA request. This credit agreement has the account number as my loan account number, but the covering letter sent with it has the account number as my current account number/sort code.

 

HSBC therefore appear to have 'merged' my current account with my loan account, and are claiming for the total amount outstanding, using NO account number as reference.

 

Also, the amount outstanding in my current account is almost all bank charges.

 

I hope this is clear? I've got to take my son out to football now but will be back after lunch.

 

Thanks for your help

[tomterm8]

can you post up the credit agreement?

[so*fed*up]

can you post up the credit agreement?

 

Yes, will post it this afternoon - just going out of the door now!

 

Thanks ever so much for your help

[so*fed*up]

I'm back!

 

Here goes -

 

http://i194.photobucket.com/albums/z24/sofedups/hsbccca3.jpg

http://i194.photobucket.com/albums/z24/sofedups/hsbccca2.jpg

[tomterm8]

Hm, it looks like this credit agreement is enforceable to me (you could contact peter bard, or post it to the credit agreement thread.)

 

did they charge any late payment fees?

[tomterm8]

I've altered the defence, to reflect this new info...

[so*fed*up]

Hm, it looks like this credit agreement is enforceable to me (you could contact peter bard, or post it to the credit agreement thread.)

 

did they charge any late payment fees?

 

I agree.

 

I will have to check if they have added any late payment fees to the loan - will try and work it out when I've bathed the kids in a mo

 

The current account overdraft amount that they have added to the claim is made up almost all of bank charges (many of the charges are for 'bouncing' the monthly loan re-payments

[tomterm8]

I would suggest filing the above defence, and then working out exactly how may charges were made and then filing that as a counter claim.

[so*fed*up]

I would suggest filing the above defence, and then working out exactly how may charges were made and then filing that as a counter claim.

 

Will get cracking with the defence you posted - very very much appreciated - thank you for coming to my rescue

 

As you know, the 28 days are up tomorrow, so I have to file my defence by then - do I have to file the counter claim at the same time?

[tomterm8]

Will get cracking with the defence you posted - very very much appreciated - thank you for coming to my rescue

 

As you know, the 28 days are up tomorrow, so I have to file my defence by then - do I have to file the counter claim at the same time?

 

you can file that latter, yes.

[so*fed*up]

Defence filed as of last night.

 

Thanks for your help folks - will keep you posted.....!