Advice requested regarding court threat **WON** Case Struck out

[Rilly]

(This is a copy of a question I have posted in the credit cards forum - I've since been advised by a member that this is a better place for it)

 

Hi,

 

I'd be grateful for some advice please. I naively opened a Topshop store account a couple of years ago, and spent £36 on it. Since then, I have made no further purchases, but GE Capital, who run the card tell me I now owe them over £450. I have had numerous telephone calls from a debt collection agency, so, following advice from this site, I wrote to GE Capital, enclosing a £10 cheque, requesting a full breakdown of the money they say I owed. They replied telling me that they had only sent partial statements, as some of my records are unfortunately not retrievable due to 'system issues'! Incidentally, they had also been sending my statements to a previous address, despite my informing them that I had moved. I replied requesting the charges be repaid. I didn't receive a response until yesterday when I received a claim form from Northampton County Court issued by CL Finance Ltd showing me as the defendant, followed today by solicitors letter confirming their intended court action.

Naturally I'm very worried - right before Christmas too. Before I go ahead and submit a counter claim, I'd be grateful for any advice from anyone who may have had a similar experience or be in the same position as me. Thanks.

[shane5408]

Hi Rilly and welcome to CAG,

 

I know it can be very worrying when one receives notice of a claim being filed against them, but you've come to the right place! the majority of cases such as these are instigated by the banks / credit card companies in the hope that the defendant will 'bury their head in the sand' and not bother defending, or indeed counterclaiming, that way they can easily get summary judgement.

 

Okay, firstly can you post up details of the Particulars Of Claim, i'm guessing their incredibly vague and very non specific.

 

Secondly, you mentioned you sent a SAR to the creditor, did you also send a CCA Request?

 

In order for this debt to enforcable they must be able to provide a credit agreement that is compliant with the Consumer Credit Act and the Regulations, if one does not exist the debt is completely unenforcable.

 

If you could post up the POC's and answer the above questions we can then advise further

 

 

kind regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

 

If my post has been useful to you please click the scales

[Edz11]

The best thing is to do nothing - at all - until you need to acknowledge. Presumably this is from Northampton County Court and you can do everything on line ? (you'll see a password etc on the first page of the court claim if it is).

[popeye1]

hello rilly i am in the same as you but oh just told me about it.your more on the ball though,good luck

[Rilly]

Thanks for your replies everyone. Shane, I didn't send a CCA request. I'm assuming I've overlooked something pretty important?

 

The POC are written exactly as follows;

 

'The Claimant's claim is for the sum of £374.43 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Denfendant and GE Capital Bank Limited under reference xxxxxxxxxxxxxxxx and assigned to the claimant on the 12th December, 2007, notice of which has been given to the Defendant.

 

The Defendant has failed to make a payment in accordance with the terms of the agreement and a default notice has been served upon Defendant pursuant to section 87(1) of the Consumer Credit Act 1974.

 

Pursuant to clause 7 of the agreement, the Claimant also claims contractual interest at a rate of 26.478% per annum from the date of these proceedings to the date of judgment, or sooner payment, accruing a daily rate of £0.33.'

 

(the court fee of £30 plus the solicitor's costs of £50.00 take the total 'owed' to £454.43)

Edz - thanks. It is Northampton Court and can be done online. This should make things easier. I didn't notice this until I read your post.

 

To add a bit more detail to the equation, one month after spending £36 on the card I made a payment of £20 and a month after that I made a further payment of £15. One month later, I still owed £26.78 (work that out!) and I paid a further £5. This payment was late and incurred a charge of £18, on top of the other charges like interest and 'account cover premium'. By this time, my account was a runaway train, although I didn't realise it because the statements were not getting to me. For what it's worth I paid another £15 several weeks later. In the months following that, up to the present day, I have paid a further £287.87. For the record it is alleged that the amount I still owe comprises over £300 in late payment charges and £121.38 account cover, (that I did not ask for).

 

Popeye, I'll keep posting to let you know how it goes. Looks like I have to respond to the court form within 14 days.

 

Thanks for your continued interest everyone - it's very comforting!!

[Edz11]

What is the date of the court claim? (timings.....)

[Goldlady]

Submit a full defence - at this point you don't need to go into too much detail. But you have more than repaid the amount borrowed.

 

CL Finance are terrible at issuing claims without any warning - I would think with a bit of help from here you will easily send them packing. I did. Just make sure you get the defence in before the deadline.

[Rilly]

Hi Edz, the date of the Court Claim is 171207 (shown as issue date). As you probably know, according to the back of the form I have 14 days from that date to submit a response. I'll get it in within about a week or so to be on the safe side.

 

Goldlady, many thanks. It's nice to know I have such support.

 

Regards R

[shane5408]

Hi Rilly,

 

As Goldlady mentioned, CL Finance have a bad reputation for filing claims extremely quickly, if they did not send you a letter before action giving you a set period to comply (normally 14 days) then they have not complied with the Pre Action Protocols of the Civil Procedure Rules.

 

The facts are as follows:

 

In order for a debt to be enforcable a regulated agreement must be in place, it is up to the creditor to provide this agreement and it must adhere to the ACT and Regulations, if it does not or if an agreement does not exist the debt could be completely iredeemably unenforcable.

 

In order for a creditor to formally demand the full balance and take any further legal action they must first serve a default notice to the debtor, this notice must also comply with the regulations and accurately state the financial details such as the 'sum due' to remedy the breach. Should no default of been served, or it overestimates the sum due it could be invalid and void meaning the creditor has no right to take this legal action.

 

They claim a notice of assignment was produced and sent to you, do you have any recollection of receiving it? If not, and again it would be up to the creditor to prove one was sent by providing proof of postage then the claimant has no legal right to bring this action, as such the case should be struck out in entirety.

 

You also mentioned the majority of the balance is made up of penalty charges, well this invalidates the default notice for a start, and gives you the option for a counterclaim for their refund, also as its not a bank account any counterclaim would not be subject to a stay pending OFT Test case.

 

I think you should do the following:

 

1. Send a CCA Request, letter is drafted below.

2. Send a CPR18 request for information to the claimant in order to accurately file a defence. You would also request a copy of the credit agremeent in this request but the benefit of sending a CCA as well is that the Act states should the creditor not comply with 12 working days of reciept they enter into default and cannot enforce at all, which includes court action.

 

-----------------------------------------------------------------------

CCA Request:

When sending this letter you need to enclose a fee of £1, if possible try and use a postal order. Also, do not sign it simply print your name

 

Dear Sir/Madam

 

I ACKNOWLEDGE NO DEBT TO YOU OR ANY COMPANY YOU PURPORT TO REPRESENT

 

Re:− Account/Reference Number

 

With reference to the above agreement, we would be grateful if you would send us a copy of this credit agreement.

 

We understand that under the Consumer Credit Act 1974 (Sections 77−79), we are entitled to receive a copy of our credit agreement on request. We enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

 

We understand a copy of our credit agreement should be supplied within 12 working days.

 

We understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

We look forward to hearing from you.

 

Yours faithfully

 

-----------------------------------------------------------------------

CPR Request letter:

 

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. 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,

 

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You can send both letters together, ensure you use the special recorded delivery service for the fastest delivery and retain proof of postage.

 

You should also file an ackowledgement of service, make sure you do so before the 14 day deadline, this will then give you a further 14 days before you have to file your defence.

 

We can prepare a proper defence for you once the claimant has responded to the CPR request, should they fail to do so the judge will take a very dim view.

 

kind regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

 

If my post has been useful to you please click the scales

[popeye1]

your POC OTHER than amounts is the same as ours,we had no warnings ,no default or notice.will keep watching though iam aweek ahead of you but can only learn.good luck again

[Rilly]

Shane, many many thanks for your post, you are a star! I will follow your advice carefully. I can confirm we have not had a default notice, unless a letter entitled 'notice of assignment' from Howard Cohen & Co solicitors counts as the same thing. This arrived a couple of days after the court notice. All it says is that a claim has been submitted to the County Court, and goes on to confirm that I owe £454.81.

 

I can't thank you enough for your post - I'll get cracking with it as soon as I can.

 

Popeye - good to hear from you too. Keep watching!

 

Happy Christmas to all.

 

Rilly

[Edz11]

Erm... don't send off the CCA letter yet. Were Cohen and Co gracious enough to give you a fax number on any of their correspondence?

[Rilly]

Shane, just a quickie, I take it that the letters should be sent to the solicitors, Cohen & Co? The claimant on the Court claim form is CL Finance Ltd. The next box down says 'Address for sending documents and payments' is Cohen & Co. This is probably a stupid question, but being new to all this I wanted to make sure I get it right.

 

Edz - I have the fax no. for Cohen & Co...

 

Once again, have a Happy one!

 

R

[shane5408]

Shane, just a quickie, I take it that the letters should be sent to the solicitors, Cohen & Co? The claimant on the Court claim form is CL Finance Ltd. The next box down says 'Address for sending documents and payments' is Cohen & Co. This is probably a stupid question, but being new to all this I wanted to make sure I get it right.

 

Edz - I have the fax no. for Cohen & Co...

 

Once again, have a Happy one!

 

R

 

Hi Rilly,

 

Yeah you should send them to Howard Cohen & CO, always send any letters with regard to litigation to the addres stated on the claim form with regards correspondance.

 

and have a very merry xmas!!

 

kind regards,

shane

[Rilly]

Many thanks. You too!

[Rilly]

Hi all, in line with the above advice I have now sent the CCA request and the CPR18 request off, and I have today filed my acknowledgment of service with Northampton County Court. The latter was a little traumatic - the online service has been down for 4 days, and due back at 9.00 am this morning. It wasn't. The phone line also seemed permanently engaged. Anyway, I eventually got through and was told that the online service would not be up and running today after all. My only alternative then was to fax it, which, with my computer setup, presented it's own problems. Anyway, I got it sorted and made another phone call to confirm that it had arrived. Relief! Next time I won't run so close to the deadline, but I wanted to make maximum use of the 14 day extension.

 

My question is, I now have 14 days from today in which to file a defence. Cohen's have 10 days to respond to my CCA & CPR18 request which they won't receive until Jan 2nd. As I see it I can't begin to prepare my defence until I've had a reply. Or can I? How much detail is required on the Defence and Counterclaim form - there isn't too much space!

 

Any help would, once again, be very much appreciated.

 

Happy New Year to you all.

 

Rilly

[Edz11]

You can't file a defence yet as they haven't let you know what you are supposed to defend. I'd fax them three days before the defence is due in. Repeat your requests for information and say that you need an immediate reply as you need to incorporate their response into your defence. I would tell them that they need to send it special business post so you get it in time. They will refer elsewhere so you wont have their full reply (if at all) your defence will then comprise of an "embarrased defence" - you haven't been given the info you need to prepare it - despite three separate requests for info (cos it will be three if you include the fax). When you get the AQ which will come later then you can make your point again. I wouldn't have sent off your CPR or CCA request before sending in your defence - but hey ho, it will hopefully bring things to a conclusion.

[Rilly]

Thanks for your advice Edz - although I'm not sure what an 'AQ' is, where does this come from?

I take it that dependent on the response I eventually get, my defence will either be a breakdown of the information provided, or a compilation of copies of the CCA, CPR and faxes together with some text on the defence and counterclaim form. but I'm unsure of how much detail I need to go into? I'm happy to write reams, but I don't know if this would be counter productive.

Apologies for the number of questions but naturally I want to present the best prepared defence I can.

Thanks, Rilly

[clutchingatstraws]

Small claims

 

This may explain it.

 

All the best for 2008

 

Cas

[clutchingatstraws]

Heres a copy of the form they send

 

http://fds.oup.com/www.oup.co.uk/pdf/n150.pdf

[pt2537]

or the N149 http://www.hmcourts-service.gov.uk/courtfinder/forms/n149_1105.pdf,if its small claims track then it will be this one CAS

[Rilly]

Thanks cas, you beat edz to it! It's now all making a lot more sense. The combined help on this thread has been really helpful and I'm very grateful to you all. I'll continue to follow the advice given and I'll let you know how it all goes. Happy New Year! (I would be out celebrating but I'm nursing the mother of all colds...)

 

Rilly

[Rilly]

Thanks also pt, your reply was over the page and I missed it first time around.

[pt2537]

Hi Rilly,

 

Happy new year to you

 

you will get all the advice you need to activley manage the claim, and to prepare your defence

 

should you encounter any problems then feel free to give me a shout and i will see what i can do to help you

 

it looks as though you have everything in hand at the mo, but any probs just shout

[Rilly]

pt, many thanks for that, I really appreciate the support. Happy New Year to you too. R.