1st Credit Ltd - Summons Issued **WON **They Discontinued**

[nimjacole]

This is my first post and I thought that I would say hi to all who have contributed so far and what a fantastic site I have read and read and I think the best thing without me becoming totally confused by the overwhelming advice is to firstly post my problem.

The first thing that I would like some help on is a debt matter. The story goes…well back in 1998/99 I took out a loan with HSBC and that loan now has become defaulted on. It was a long story and I basically had forgotten all about it as I was going through huge changes in my life with a new baby, selling my property and moving to a different country. Anyway, I have since come back in this country and now out of the blue I have received a summons issued in the Northampton Count Country issued against me by 1st Credit Finance Limited in the sum of over £5,000 when the original debt was £4,000.

I have looked on the forum and have indeed used the wonderful template provided and have requested further information of this debt from 1st credit but all they have provided me is the transcription of conversation some searches done on me and a copy of the assignment letter which I very much doubt they sent as they sent it to an incorrect address even though it is clear from the searches that they had the correct address at the time but stills sent it to an incorrect address, which just leads me to believe that this was done recently!

The second not convincing thing, is that they say, without documents to back this up, is that the account with HSBC was closed in 2003 which I don’t think was the case and it was more likely to have been closed well before this time, I am uncertain, this is the problem, I just cannot remember the dates etc, save to say it was back in 98/99.

I have requested further documents and again documentation relating to the original credit agreement which they say I should request direct from HSBC and they will provide allthe documents they intend to relay upon when ordered by the court during disclosure. They also say the they have requested further docuentation from the original creditor and will forward them onto me. They also go to say that they do not hold any proof of postage as letters were not sent to me by recorded delivery.

Can anyone help with this regard? I have put in an acknowledgement of service and intend to defend this case, even if I have to pay back the original amount and not the inflated amount I don’t believe I owe them at all. I just want to make sure that this inflated sum currently £5,376.61 (this includes court fees and solicitors costs) from the original sum of £4,000 from which I have paid roughly £1,200 in 1998/99 is the correct amount that they can legally claim and whether they are suing me under the correct law (which they say is under s.136 LPA 1925) this is quoted in the letter received and not the claim form.

The claim form does not provide any dates no details of credit agreements with HSBC all it is states is that they are entitled to 8% per annum pursuant to Section 69 of the County Courts Act 1984 amounting to over £500 and interest at a daily rate of 99p.

Can anyone help me with drafting a Defence to the action or a letter bringing up the above points? I know what I want to say but I cannot say it or the legal terminology!

Thanks very much.

[gizmo111]

Can you post the exact POC on their claim form.

When did you last make a payment? Do you think it was before Nov 2001?

[nimjacole]

Thanks so much for you reply, so so appreciated....as requested...

 

""The Defence was indebted to HSBC for credit advanced. The debt was assigned to the Claimant. Notice of assignment was given to the Defendant. T he Claimant claims the debt due from the Defendant of £4,524.29 together with the interest at the rate of 8% per annum pursaunt to Section 69 of the County Courts Act 1984 amounting to £554.40 and also claims further interest until Judgment or sonner payment at the daily rate of 0.99""

 

the last payment i believe was probably in 1999/2000 a little before I had my baby, it certainly wasnt in 2001!

[pt2537]

right then, if the last acknowledgment/payment of the debt was before Nov 2001, there is a high chance that the account is statute barred by now

 

the POCs are not very informative either

 

bear with me and i will search for the letter you need to send these

 

regards

paul

[Curlyben]

Throw this at them NOW on next day guaranteed delivery.

 

REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES.

 

Dear Sir/Madam,

 

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. This letter supersedes the Data Protection request made to on the **DATE**. The information must be furnished by the **DATE**, which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with **CREDITOR**.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

3. Any other documents you seek to rely on in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

I will require this information within the next ten days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully,

 

[pt2537]

Thanks Ben

[pt2537]

With regards to the defense, its fairly straightforward so don't panic,when does your defense need to be filed?

[nimjacole]

I cannot thank you enough, this is fantastic!!!!

 

Well turning to the Defence, I actually went onto the www.moneyclaim.gove.uk site and actually filed an acknowledgement of service on 22nd November 2007 which was received on 23rd November 2007. I'm not sure when the defence is due - is this 28 days from this date, if it is then its due on 21st December. Is it my understanding that I just file the Defence on the 20th December? or do I need to inform the COurt that I intend to do so, does that make sense!

 

Thanks.

[tomterm8]

Best to call the court and ask when the defence is due. it's on the top right hand corner of your claim form.

[NitrousOxide]

Their POC is:

"We bought this loan and you owe it, look we have a notice of assignment!!"

No agreement number or any dates, how they came to that figure and of course it could be statute barred.

You're in good hands with the others here

[nimjacole]

I have sent off the letter by recorded delivery yesterday and will let you know what their response is.

[nimjacole]

Hi all,

 

I've been in contact with the Court and they have said the following.

With reference to the above claim number, please be advised that the case has not been transferred. Your Acknowledgment of service giving you an extra 14 days to file your defence was filed on 23-NOV-2007, I advise you to submit your defence to the court as soon as possible to avoid judgment being entered against you in default.

Once your defence has been received a copy will be sent to the claimant they will then decide if they wish to continue with the case and proceed for a hearing.

 

I have not heard anything from the claimants.

 

Please advise of next steps to take, as I really dont want judgement entered against me!!

 

Thanks

[pt2537]

Hi there

 

you shout, we reply

 

here you go

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

nimjacole- Defendant

 

 

Defence

 

 

1.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.

 

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

 

3.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 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.

 

 

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

 

5.I put the claimant to strict proof that I am liable for this debt and that it is not statute barred by virtue of section 5 of the Limitation Act 1980, I require the claimant to produce evidence that any such payments towards this debt have been made in the last six years

 

6.Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and 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 copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

7.To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested

8.The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

9.The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

10. I refer to

LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

11.Notwithstanding points 8 and 9, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

12The claimant is therefore put to strict proof that such a compliant document exists

 

13.It is neither admitted or 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.

 

14.Notwithstanding point 11, 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 and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

15.Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

16.Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

17.In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

 

18.Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 6 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

19.In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

 

 

 

[pt2537]

fire that off to the court by special delivery

 

amend to suit and make sure the dates are all added in the right places,

 

if you need any help shout

[nimjacole]

I have duly typed this out and have made the necessary amendments. I take it I leave the date at the end of the Defence blank as I dont have a copy of the agreement to cite from?

 

Thanks.

 

I will as ever keep you posted. The Defence is going out tonight.

 

Regards,

[pt2537]

hi there,

 

you can omit point 19 if you like, its not totally necessary as i only included it if they try to claim the agreement is regulated by the 2006 cca

 

dont panic, its not that important,its just that some lenders do try to pull a fast one with this

[nimjacole]

Hi All

Hope you all had a lovely break.

 

Back to business!

 

I have heard from 1st Credit's Solicitors (whom I have noted are also residing at the same address as the credit agency who have bought this loan!).

 

They have indicated as follows:-

 

Further to our letter I have reviewed your account history and see that you were notified by HSBC of a default on your account on 16th June 2000. Subsequently, you made an offer of repayment of the debt by instalments of £20 per month (I really cannot recall making this offer) You also made an offer of £3,800 in repayment of the debt in January 2003. (I also cannot remember this).

These offers of repayment amount to an acknowlegement of the debt. Pursuant to s.29(5) of the Limitation Act 1980, the debt is not statute barred. We believe there is no substantive defence to our client' claim.

The costs involved in pursuing further legal action will inevitably be significant. Costs will include an allocation questionnaire fee of £200 and a hearing fee of approximately £500.

 

We are mindful of the fact that given your circumstances, as indicated to us during a telephoned conversation on 20th June 2007; it would be difficult for you to meet a judgment against you for the full amount of the claim, interest and costs.

 

Therefore our client is willing to consider accepting a reduced amount in settlement of the claim. Is the offer of £3,800 made in 2003 still available? Our client is willing to accept this amount in settlement of the claim.

If this sum is no logner avaialble, our client may be willing to consider payment by instalments, provided they are reasonable in relation to the amouny of the debt owed and your ability to pay.

 

Please contact this office etc....

Can you please advise where I go from here. As obviously, if matters are continued then I will have to bear in mind the costs issue raised.

 

Thanks

[Curlyben]

These "offers" MUST have supporting evidence, preferably in writing although a tape recorded call may be acceptable, otherwise they aren't worth the paper they are printed on.

 

The issue of costs is simply to scare you.

As this will be in the small claims they cannot claim costs from you.

 

Has 1st responded to your CPR request at all ??

As this should show all of their evidence.

[nimjacole]

Do I just wait now, to see what will happen. I have filed my defence and the Courts have acknowledged it what is the next step.

[Curlyben]

Now I would wait and see what happens next, but I given PT a shout for further advice on this.

[nimjacole]

thanks, look forward to hearing from him

[nimjacole]

Has 1st responded to your CPR request at all ??

As this should show all of their evidence.

 

I have never received any form of documentation if that is what you mean. The only thing received is a copy of the default letter sent by 1st which is incorrectly addressed to me even though they had my full address at the time the letter was supposed to have been sent it was sent to a previous address!

[pt2537]

Hi there

 

Right, WOW, where to start......

 

 

ok , firstly, the alleged communication offering 3800 , now then, if you cant remember offering this and they have produced no substantive proof how can we be sure this is the case.

 

for starters they are most likely reliant upon notes made on the account and what is to say these notes themselves are accurate.

 

now if they produced a letter with your signature on it then that's different but as it stands .... well i will leave you to ponder that one:)

 

But i say PROVE IT !!!!!

 

now then the issue of costs

 

Small claims track has limited costs, for starters, now they have instigated the proceedings, they have failed to supply you the info to help you thoroughly investigate their claims and they have failed to comply with a request for disclosure under the Civil Procedure Rules

 

i cannot see the judge based on those facts considering you unreasonable in this so i cant see him considering awarding costs against you. so i feel it is much a scare tactic as anything

 

Now they refer to telephone conversations, it is important that you do not speak to them on the phone from now on

 

personally, and this is my own opinion, i would consider writing to them asking for something with more substance, anyone can claim this and that, indeed i could claim you owe me five thousand pounds, would you pay me solely on the basis that i asked you to with no proof of debt? NO of course you wouldnt so why bow to them.

 

i can happily help you write a reply to them, it must not in any way acknowledge that your indebted to them but i will happily help you out should you decide this is what you want to do.

 

at the end of the day, its your decision as it is indeed your case, i can only advise and help you on whatever road you choose to follow

 

 

personally, i would not concede defeat at this point but that's my view

 

Let me know how you wish to go forward

 

regards

paul

[The GodMother]

well it looks like they are barking up the wrong tree then.

 

Chrissi

[scorterooney]

 

Further to our letter I have reviewed your account history and see that you were notified by HSBC of a default on your account on 16th June 2000. Subsequently, you made an offer of repayment of the debt by instalments of £20 per month (I really cannot recall making this offer) You also made an offer of £3,800 in repayment of the debt in January 2003. (I also cannot remember this).

 

These offers of repayment amount to an acknowlegement of the debt. Pursuant to s.29(5) of the Limitation Act 1980, the debt is not statute barred. We believe there is no substantive defence to our client' claim.

 

The costs involved in pursuing further legal action will inevitably be significant. Costs will include an allocation questionnaire fee of £200 and a hearing fee of approximately £500.

 

 

Please contact this office etc....

 

 

Can you please advise where I go from here. As obviously, if matters are continued then I will have to bear in mind the costs issue raised.

 

Thanks

 

Firstly, Good luck, and secondly apologies for butting on your thread.

 

Im also in the process of defending against First Credit and have just filed my acknowledgment with mcol - I have requested all the docs as you did and like others will prob be attempting to defend on not having CCA etc - the bit you typed above has worried me though as i have sent LOTS of letters over the past year and a half attempting to set up payment plans to no avail so will this count against me ?

 

Anyway, if anyone gets a chance id appreciate it if they could take a look at my thread here: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/125944-scorterooney-first-credit-help.html and advise me on the above concern.

 

Hope you get this sorted - 1st Credit have to be THE worse and rudest dca out there so they deserve what ever they get !