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

[nimjacole]

Hi there

 

 

 

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

 

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

 

 

Hi Paul

 

thanks again, I really cannot remember anything they say, in 2000 I remember I was still in this country and I had indeed defaulted on the loan I may have suggested at the time to HSBC that I make payment of £20 per month but I dont think that ever transpired. I became pregnant in 2001 and travelled for a little while with my husband. However, I did speak to 1st Credit a few times in 2006 and 7.

 

I think at the beginning of the year where I indicated that i might be in a position to pay something but they became really rude on the phone and I ended up just putting the phone done on the person I spoke to as he basically told me to pay up and that I wasnt in a position to negotiate!!!

 

I then had another conversation with a really nice lady I told her that I wasnt in a position to pay anything as I was at the time studying and had been going through a separation with my husband and that the house may be sold but my hsuband was still paying for the mortgage.

 

Anyway, to cut a long story short no money was ever sent for this debt and negotiations literally broke down between myself and 1st credit.

 

I would love for you to help me draft a letter as I feel that I can fight this because I cannot afford really to lose especially if I get a cost order against me so have to continue.

 

I therefore look forward to hearing from you with your draft letter.

 

 

Madge

PS. as I have said previously I haven't received any substantive documentation to back any of this up.

[ODC]

I wouldnt worry too much about any phone calls you may or may not have made. 1st Credit like most DCAs could not afford to record any calls because of the way their staff behave on the phone. They would leave themselves wide open to legal action. I think that reading between the lines fro 1sts solicitors that they are trying to back pedal their way out of this one. They seem to have failed to notice your request for information under the CPR rules so until they compy with this they would be on dodgy ground trying to run with this one. Stick with Paul's advice and you wont go far wrong.

[tomterm8]

I think the fact they have now offered a substantial discount suggests that, in fact, they are not entirely confident of winning.

 

They would be required to prove any allegations made, and have as yet failed to do so.

 

That said, you might want to offer a without prejudice, and without admitting liability, amount of - say - £1,200 (or even less). of course, it's up to you. I must admit, 1st credit are starting to interest me, as they have sudenly started claiming they were writing to me last year - yeah, right.

[ODC]

I think the fact theave now offered a substantial discount suggests that, in fact, they are not entirely confident of winning.

 

They would be required to prove any allegations made, and have as yet failed to do so.

 

That said, you might want to offer a without prejudice, and without admitting liability, amount of - say - £1,200 (or even less). of course, it's up to you. I must admit, 1st credit are starting to interest me, as they have sudenly started claiming they were writing to me last year - yeah, right.

They have diddly squat why bother offering the clowns even 12p

[tomterm8]

They have diddly squat why bother offering the clowns even 12p

 

You can never tell what they might ... "turn up"* at a latter date:x . I would also admit, I have seen cases where people with impecable cases have still lost at county court level, which people simply don't have the money to appeal.

 

There's also an legal advantage to a part 36 offer PART 36 - OFFERS TO SETTLE . if they accept it, you have no risks (and, lets face it, however good your case you can always lose at trial)... if they refuse, and are awarded less than your offer, then they are liable for all your costs, and a very high rate of interest (e.g. 10%). Some people try to get the offer slighly lower than their opponent would be willing to accept as a political tool, so that it less likely a judge will award costs against you if you lose, and MORE likely award costs against your opponent.

 

Maybe I'm just cynical... but the more I see of the british justice system, the less i think the results are predictable, and I often prefer a safe course.

 

* not that I would ever accuse any reputable DCA, such as 1st credit, of using photoshop.

[nimjacole]

I am not sure what to do now. Basically all I want is for this to go away and if it means going to court because the case is statute barred then surely I have a good case! so I'm confused as to why I would make Part 36 Offer ? or is it my belief that this is a tactical exercise just so that I am covered if any costs are awarded against me should i lose the case?

[ODC]

Im still of the opinion you should go the Statute Barred route. Unless they have WRITTEN acknowledgement of the debt by you they have nothing.

[tomterm8]

I am not sure what to do now. Basically all I want is for this to go away and if it means going to court because the case is statute barred then surely I have a good case! so I'm confused as to why I would make Part 36 Offer ? or is it my belief that this is a tactical exercise just so that I am covered if any costs are awarded against me should i lose the case?

 

Hi, Nimjacole,

 

There's no right or wrong answer. as you can see, I'm more conservative than ODC, and so getting a large chunk removed from the debt while not taking any risks is quite attractive.

 

However, you do (at this stage) have a very strong case. I would say an 80%-90% chance of winning. so it would be quite understandable if you went on.

[nimjacole]

Well that was the route i was intending to take. I am just waiting to hear from Paul with draft letter to send off to them to see what evidence they have to substantiate their claims.

[nimjacole]

Hi, Nimjacole,

 

There's no right or wrong answer. as you can see, I'm more conservative than ODC, and so getting a large chunk removed from the debt while not taking any risks is quite attractive.

 

However, you do (at this stage) have a very strong case. I would say an 80%-90% chance of winning. so it would be quite understandable if you went on.

 

I know what you mean it is attractive just to rid of the case, but I really need to know what documentation they have before I can even contemplate making any offers to settle at the present time, because they havent come up with anything to date, I am of the opinion that they are just trying it on.

[ODC]

Send them this

 

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 any previous requests. 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 Barclaycard.

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,

[nimjacole]

I have already submitted my defence to the Court and they have replied as in a letter to me above.

 

Can I still send this letter to them?

[tomterm8]

Hi, ODC, while that letter is good (I wrote it, LOL, so I would say that ) in this case I would hold off and see what Paul writes, since it isn't specific enough to this case.

[ODC]

Well Im sure it could be used if amended,

 

I should have guessed either you Ben or Paul were the original author

[nimjacole]

thanks guys will email Paul later.

 

Does anyone know what the timeline is for cases once a defence has been submitted. I believe the plaintiffs had until the 18th Jan to reply to my defence now what happens next? I have emailed the court but I get slightly confused as to who has to submit what and by what time!

[tomterm8]

There's also an legal advantage to a part 36 offer PART 36 - OFFERS TO SETTLE .

 

scrub that; Paul has just pointed out the case is under £5k; I had (mis)read it as 7.2k. If it's SCT, then there are very reduced cost implications anyway, and so no point.

[nimjacole]

Thanks for all of the above.

 

I have emailed Paul and have to log now to do some housework!!!

 

Will check in later.

 

Have a nice day.

[pt2537]

In the xxxxxxxxx County Court

Claim Number

Nimjacole v 1st Credit

 

 

 

Dear Sir

 

 

Thank you for your letter dated xx January 2008 the contents of which I note

 

As you are fully aware, it is my intention to defend this action You will note that on xx/xx/ 2007 / 8 (EDIT TO SUIT) I wrote to you requesting that you supply me a copy of the credit agreement in relation to this account, a copy of the default notice issued, a copy of any notice of assignment and other supporting information. For your information I have attached a copy of that letter. I requested these documents to allow me to fully investigate this claim as no supporting documents were supplied with the claim form.

 

I note that you claim to be reliant upon the fact that I made an offer to settle this account in approx 2003. I am unable to comment on that, as I have no memory of such events happening. Therefore it is my belief that this claim is statute barred pursuant to section 5 of the Limitation Act 1980 and the burden of proof falls upon you to prove otherwise. Also, I am aware that without production of a compliant credit agreement, which complies with the requirements of the Consumer credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) among others, the courts power of enforcement is seriously restricted. Infact failure of an agreement to contain the prescribed terms set out in SI 1983/1553 and signed by the debtor and creditor in the prescribed manner, the agreement would be totally unenforceable by way of S127 (3) Consumer Credit Act 1974.

 

I agree that this case needs to be resolved, it would also be beneficial for all parties concern if this could be done without the need for court,and to that end, if you would kindly supply the requested information I will be able to fully investigate you claims and take the appropriate action accordingly. At present you have failed to supply the requested documentation, I do not feel it is unreasonable to ask for this after all I am a litigant in person.

 

 

On the issue of costs, I note that it is highly likely for the case to be allocated to the Small Claims tack and that under that Track, costs are limited and further more since I do not believe my actions are unreasonable I feel that it is highly likely that any costs awarded would be limited, if at all

I trust you will consider my request, as I am unable to enter into any negotiations over this debt until such time as you provide the requested information, however, if you supply the requested information and I find that I am indeed indebted to your client’s organisation I will look to resolve this matter amicably

 

 

Regards

 

 

xxxxxxxxxxxxx

 

 

well i was thinking of something along those lines

 

any opinions?

[nimjacole]

This sounds good to me. I will let you know their response. I will give others time to give thoughts, if they so wish, before I send it off.

 

 

Thanks

[nimjacole]

Hi all

 

I sent the above letter please see response. I also received an without prejudice reply basically indicating that they realise that I might not be in a position to pay the full amount but to avoid further litigation then are prepared to accept whatever I can offer and if i cannot make a full lump sum then instalments is fine. However, I was still confused by their first letter which is as follows:-

 

.Thank you for your letter of 14th January...

...it would appear that you are misadvised. An agreement enabling a debtor to overdraw on a banking current account is exempt from Part V of the Consumer Credit Act 1974 where the director so determines, pursuant to the CCA Regs 1983 (SI 1983/1554).

The claim does relate to an overdrawn current account where the director did make such a determination and therefore the court's power of enforcement is not "seriously restricted" as you suggest.

We recognise that costs may be an issue should the claim be allocated to the small claims track. While our client may not recover all costs, our client will potentially incur a £500 hearing fee and £200 allocation questionnaire fee among other costs. Pursuant to CPR 27.14, these costs and fixed costs pursuant to CPR 45 will be added to the debt.

We invite you to reconsider entering into negotiations with our client and look forward to hearing from you.

I have today received the allocation questionnaire from the court and was actually filling it when the above letters arrived. The case will be heard nearer to me and I have indicated that I am agreeable to the case being heard in the small claims court.

 

The without prejudice letter also indicates that should a judgement be obtained against me then they intend to place a charging order over the property.

 

My concerns are once again the costs issue and if I do lose the case then these will be borne by me! The second confusion arises from the above letter in that it talks about is being overdrawn on a banking account. Although this was in effect a loan from HSBC why are they now taking about an overdrawn amount, i'm a bit confused as as far I was concerned this was a loan taken out by me sometime in 99 and which was defaulted on, I never had an overdraft, as far as I can remember with the bank at the time!

 

Look forward to hearing from you.

[pt2537]

hmm, i am confused,

 

i too thought that you said it was a loan,

 

so is it possible that it is they are right and its not a loan, or are they trying to get out of the regulation of the consumer credit Act 1974 because they know that a claim under the CCA would fail because they dont have an agreement

 

now , your concerns,

 

can you afford to pay them?

 

if yes then do it

 

 

but i guess the answer will be no,

 

so there is little you can do, they are taking legal action, they have not provided any documents yet have they ? if they havent supplied any documents then how can they prove you owe? how do we know its not statute barred?

 

sorry to sound blunt but as i see it, at this point you have very little option apart from defending this case but it is up to you,

 

now on the matter of allocation questionnaires

 

you say you have one? is it a N149 or N150. i have some special documents that you can include with the AQ, they are directions which i wrote but i need to know which form you are using

 

regards

paul

[nimjacole]

Thanks for your reply.

 

Yes, I too was a little concerned about what they were saying as stated, I never had an overdraft with the bank. As far as I am aware this was a credit agreement with HSBC and not as they state. Not sure where they have got this from.

 

No, they have not provided me with the relevant documents, once again.

 

I will defend this case!

 

The Form sent to me by the Court is a N149.

 

Regards,

[pt2537]

ok, well its a wee bit late for me to dig out the directions et al tonight, remind me tomorrow and i will post up all what you need and go through it with you.

 

regards

paul

[nimjacole]

speak tomorrow

[pt2537]

In the ************* County Court

Claim number **********

 

 

 

 

Between

************* - Claimant

and

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

and

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N149 Allocation Questionnaire

 

Section G - other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

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

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

 

 

then in the box for section G write

 

 

Please find the following attached to this allocation questionnaire;

 

1) Section G - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the defendant on **/**/**.