Loan from Tesco Incasso Applying For Charging Order / CLAIM NOW RECEIVED

[Poppay2]

Anyone able to advise on comments made within the text of the holding defence ?

I need help completing the AQ and not too sure how to go about it.

please advise if I am on right track.

Cobbetts are fast tracking this case and have requested 4 hours for the court hearing.

Transferred to local court.

Link below is their main part of the AQ

http://s481.photobucket.com/albums/r...rrent=AQ5A.jpg

In the xxxxxxxx County Court

 

Claim number

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

xxxxxxx - 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 Claim 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 preceding 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 answer

 

5. Further to the case, on xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules Part 18,

including, but not limited to, copies of the documents mentioned in the Particulars of Claim, namely the Credit Agreement, the Notice of Default, and the Notice of Assignment.

They have provided a two page document referring to the CPR Rules Part 18.

http://s481.photobucket.com/albums/r...rrent=CPR1.jpg

 

http://s481.photobucket.com/albums/r...rrent=CPR2.jpg

 

6. The claimant responded on the xx/xx/2008 to my request for disclosure under the Civil Procedure Rules Part 18 claiming that my legitimate request under the Civil Procedure Rules was in fact a Data Protection Act Subject Access Request, and refused to comply with my legitimate request. The request was send via Special/recorded delivery, and was signed for on xx/xx/2008. Please find attached exhibit 1, a copy of proof of delivery. Since they have refused to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimants allegations at this stage

There is a screen print detailing the CPR Part 18 request and states that someone will contact me to ask for fee for info.

They state there is no Assignment, but Unidebt had the debt for years, unless they are actually part of RBS which I suspect they are.

Below are copies of 3 of the main screen prints for info.

 

http://s481.photobucket.com/albums/rr175/Dataxxl/?action=view&current=LETC OB7.jpg

 

http://s481.photobucket.com/albums/rr175/Dataxxl/?action=view&current=LETC OB8.jpg

 

http://s481.photobucket.com/albums/r...nt=LETCOB9.jpg

 

7. It is my opinion that the claimant is trying to frustrate matters in refusing to disclose the documents requested and the claimant is ignoring the overriding objective and the courts attention is drawn to the fact that the claimant has stated in the letter referred to in point 10 that "we require the statutory £10 administration fee. This is in line with the Subject Access Request rules." As the claimant is perfectly well aware that I requested information under the Civil Procedure Rules which require no fee, it is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me. Please find attached exhibit 2, letter dated xx/xx/xxxx .

 

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 assess if any agreement the claimant is 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

 

 

It appears that the T&C’s are correct however debtor signature box has a greyed out background and does not appear to part of the rest of the document.

Issue with PPI being missold.

9. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 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

 

There is NO creditor signature or date in the creditor signature box

10. 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

 

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

 

Claimant states that default notice was issued during time that Baines & Earnst were managing the debt. Would they have sent the default notice to Baines & Earnst?

12. 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)

 

Statements only go as far back as 2007, no data or statements submitted prior to this. There are two account numbers. No information about interest added or if charges have been applied also. One is titled: Router Account… RGN Router

13. 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)

 

14. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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.

 

15. 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.

 

16. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the courts’ permission to amend my defence accordingly.

 

17. 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 1999,the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

 

P.

[davefirewalker]

Ok....again not read 100%

 

1 the debt is quite old...have you been paying it, when was the last time you acknowledged it

 

2 are you taking them to court or is it them taking you

 

3 how much is it for

 

 

if its for less than £5k you can ask for it to be a small claims no matter what the other side wants

 

even if it is for more you can still ask for small claims as the issue is simple....have they got a valid agreement or not

 

The CPR18 request wont really apply to small claims

 

if they are taking you to court YOU dont have to pay the fee.......unless you are counterclaiming

 

you could really do with some better advice than I can give

 

rgds

 

dave

[Poppay2]

Thank you so much DaveFW

 

1- Yes it is old and yes I have been paying albeit token payments for the last few years.

 

2- They are taking me to court

 

3- They say total debt is just under £9k (could be more I dont know about any penalty charges yet)

 

I suspect the CCA is not a true copy.

There is no creditor signature.

The signature box with my signature has a grey background and is on a page with the creditor signature box on its own. (Possibly cut and paste job) Is identical (except for the figures) to the one Dick Emery recieved and is disputing its authenticity. Link to that one below:

Moorcroft found the signed Credit Agreement. Please look.

 

I have asked pt2537 to look at it as he did comment that Dick Emery's looked suspicious.

 

I have also asked ScabHunter, but I am guessing by the number of posts on the site that they are both extremely busy.

 

I never stopped paying, but I did say that I disputed the account before they went through the courts.

 

Incasso wrote to me last year, I CCA'd they took ages, then I send letter of dispute and saying did not acknowledge.

 

ScabHunter kindly helped with my defence.

 

My court papers with AQ was delivered to wrong address and whoever had them put them through my letterbox on Sunday and the AQ deadline was Fri 13.

Talk about unlucky!

P.

[car2403]

Hi Poppay,

 

I'm trying to get you some additional help on this one...

[Poppay2]

At least this is a wee bit of good news!

The government also confirmed it was ditching measures that would have given bailiffs more enforcement powers and made it easier for lenders to impose “charging orders” against a borrower’s home.

The legislation to allow these new powers was passed in 2007 but has yet to be implemented. After the Conservatives attacked the relaxation of the law, a review was launched last year to see if the proposals were still “appropriate”.

The justice ministry on Tuesday announced that it would not implement a section of the act that would allow bailiffs to break into family homes or allow “the use of force by enforcement agents”. Instead ministers plan to introduce a “bailiff register” to allow debtors to check their credentials.

FT.com / UK - Brown signals measures to aid borrowers

[Poppay2]

Hi Car2403

Thank you so much.

P.

[paulwlton]

Thank you so much DaveFW

 

1- Yes it is old and yes I have been paying albeit token payments for the last few years.

 

2- They are taking me to court

 

3- They say total debt is just under £9k (could be more I dont know about any penalty charges yet)

 

I suspect the CCA is not a true copy.

There is no creditor signature.

The signature box with my signature has a grey background and is on a page with the creditor signature box on its own. (Possibly cut and paste job) Is identical (except for the figures) to the one Dick Emery recieved and is disputing its authenticity. Link to that one below:

Moorcroft found the signed Credit Agreement. Please look.

 

I have asked pt2537 to look at it as he did comment that Dick Emery's looked suspicious.

 

I have also asked ScabHunter, but I am guessing by the number of posts on the site that they are both extremely busy.

 

I never stopped paying, but I did say that I disputed the account before they went through the courts.

 

Incasso wrote to me last year, I CCA'd they took ages, then I send letter of dispute and saying did not acknowledge.

 

ScabHunter kindly helped with my defence.

 

My court papers with AQ was delivered to wrong address and whoever had them put them through my letterbox on Sunday and the AQ deadline was Fri 13.

Talk about unlucky!

P.

 

Have you scanned and posted the agreement.

[Poppay2]

Yes I have

Here are the links:

Image of RBSCCA1 - Photobucket - Video and Image Hosting

 

Image of RBSCCA2 - Photobucket - Video and Image Hosting

 

P.

[Poppay2]

I'm sending a letter to the County Court as my AQ was late arriving and is now a week overdue.

I think the letter drafted below will suffice.....

All comments welcome, but will be sending it in a couple of hours (its now 12.48).

Dear Sir

ALLOCATION QUESTIONNAIRE – CLAIM NO:

I am extremely concerned that I did not receive the Allocation Questionnaire until AFTER its return date. It was delivered to the wrong address and I received it on Sunday , however the return date was for 2009.

I telephoned the County Court at 10.00 am on16 March 2009 to notify of the late receipt of the form and was informed that I should complete and return it as soon as possible.

Yours faithfully

 

 

P.

[MARTIN3030]

This just confirms in writing what they have been told 4 days ago.

There should have been a note entered on the screen following your phone call,and so you have done all you could in the circumstances.

[Poppay2]

Hi Martin3030

Thank you for viewing it, someone suggested that I should also put it in writing.

 

I'm more concerned about completing the AQ, as I'm not sure how to go about it.

P.

regard

[Poppay2]

Hi

My AQ is late and I am not sure how to put it together. I have made some notes below, could someone please help?

 

Cobbetts are fast tracking this case and have requested 4 hours for the court hearing.

Transferred to local court.

Link below is cobbetts main part of the AQ

http://s481.photobucket.com/albums/r...rrent=AQ5A.jpg

 

They have provided a two page document referring to the CPR Rules Part 18.

http://s481.photobucket.com/albums/r...rrent=CPR1.jpg

 

http://s481.photobucket.com/albums/r...rrent=CPR2.jpg

 

 

To put into AQ?

 

1. I do not believe that CCA is a true copy. I have never signed a document that had the signature boxes on an A4 page on their own.

 

2. I do not believe that CCA is a true copy there is no creditor signature.

 

3. I do not believe that CCA is a true copy as the box with my signature is the only part of this 'document' that has a shaded background.

 

4. The CCA is not dated */**/** as per the claimant's statement.

 

5. A default notice was never recieved.

 

There is a screen print detailing the CPR Part 18 request and states that someone will contact me to ask for fee for info.

They state there is no Assignment, but Unidebt had the debt for years, unless they are actually part of RBS which I suspect they are.

 

Below are copies of 3 of the main screen prints for info.

 

http://s481.photobucket.com/albums/rr175/Dataxxl/?action=view&current=LETCOB7.jpg

 

http://s481.photobucket.com/albums/rr175/Dataxxl/?action=view&current=LETC OB8.jpg

 

http://s481.photobucket.com/albums/rr175/Dataxxl/?action=view&current=LETCOB9.jpg

 

 

6. Unidebt had the debt from 2002 to 2007. No letter of assignment was ever recieved.

Claimant states that default notice was issued during time that Baines & Earnst were managing the debt. Would they have sent the default notice to Baines & Earnst?

 

7. Statements provided only go back to */**/** 200*. Where are the statements for all the years proceeding.

 

8. This is a Router Account....

Statements only go as far back as 2007, no data or statements submitted prior to this. There are two account numbers. No information about interest added or if charges have been applied also. One is titled: Router Account… RGN Router

 

9. When Incasso first wrote to me I attempted to make a new payment arrangement, they refused to negotiate with me.

 

10. £1 was not sent to Incasso as a payment against this debt, this was payment with request for a True Copy of the CCA.

 

11. Despite numerous attempts to discuss matters with Incasso they completely ignored me and went ahead with court proceedings.

 

12. PPI was missold. When made redundant in 200* I did not know had PPI and therefore never made a claim.

 

13. No true copies of documents have been received by myself only screen prints, I understand that documents should be kept until there is no longer any legal requirement for them.

 

 

P.

Edited March 23, 2009 by POPPAY
update image links

[car2403]

How much is the claim for, Poppay?

[paulwlton]

Hi Poppay.

 

Are RBS seeking to rely up on the amount contained in the "router account"?

 

Are thee any other statements?

 

Paul

[Poppay2]

How much is the claim for, Poppay?

Hi Car2403

Its just under £9k I think, dont know about any penalty charges if any.

P.

[Poppay2]

Hi Poppay.

 

Are RBS seeking to rely up on the amount contained in the "router account"?

 

Are thee any other statements?

 

Paul

Hi Paulwltn

 

there are 3 pages of statements which begin in April 07, nothing before that date.

 

I believe that they are taking the info from the router account, not sure how it all works with them.

I have just fixed link to one of the docs, its this one

 

Just fixed all the links, dont know why it all went haywire.

 

http://s481.photobucket.com/albums/r...nt=LETCOB7.jpg

 

http://s481.photobucket.com/albums/rr175/Dataxxl/?action=view&current=LETC OB8.jpg

 

http://s481.photobucket.com/albums/r...nt=LETCOB9.jpg

 

This has the router account details I think.

P.

Edited March 23, 2009 by POPPAY
update image links

[paulwlton]

Hi Paulwltn

 

there are 3 pages of statements which begin in April 07, nothing before that date.

 

I believe that they are taking the info from the router account, not sure how it all works with them.

I have just fixed link to one of the docs, its this one

LETCOB9 picture by Dataxxl - Photobucket

 

This has the router account details I think.

P.

 

What is the archive creation date?

 

Are there anymore router account pages...this is one of ten pages?

 

Is there an amount contained in the router?

 

Can you post other statements?

 

Paul

[Poppay2]

Hi Poppay.

 

Are RBS seeking to rely up on the amount contained in the "router account"?

 

Are thee any other statements?

 

Paul

The statements didnt photograph well, and my scanner just died on me. I will try to photograph the statements again later today, at work at the moment, and looking in when I can.

P.

[Poppay2]

What is the archive creation date?

 

Are there anymore router account pages...this is one of ten pages?

 

Is there an amount contained in the router?

 

Can you post other statements?

 

Paul

Archive creation date is 19/6/99.

 

There are more pages and I will get them posted by the end of today.

 

I have just noticed that on these print outs the interest rate is 5.71%. On the copy of the CCA they sent me it is 10.8%.

Is this relevant, does this prove it isnt a True Copy of the CCA?

 

I will get these posted up today without fail.

P.

[paulwlton]

Archive creation date is 19/6/99.

 

There are more pages and I will get them posted by the end of today.

 

I have just noticed that on these print outs the interest rate is 5.71%. On the copy of the CCA they sent me it is 10.8%.

Is this relevant, does this prove it isnt a True Copy of the CCA?

 

I will get these posted up today without fail.

P.

 

You need to post up as much as possible.

[Poppay2]

Here is the link to all the documents received from Cobbetts:

 

http://s481.photobucket.com/albums/rr175/Dataxxl/COBBETTS/

 

 

P.

[url=http://s481.photobucket.com/albums/rr175/Dataxxl/COBBETTS/][/url]

[Poppay2]

You need to post up as much as possible.

Have saved them all to this link:

 

This link is everything that Cobbetts sent:

 

http://s481.photobucket.com/albums/rr175/Dataxxl/COBBETTS/

 

 

This link is copy of the CCA and sched of payments

 

http://s481.photobucket.com/albums/rr175/Dataxxl/CCA/

P.

Edited March 24, 2009 by POPPAY

[Poppay2]

How much is the claim for, Poppay?

Hi Car2403

Have created two albums one contains all that cobbetts sent

COBBETTS pictures by Dataxxl - Photobucket

 

The other is the CCA that RBS/Incasso sent

CCA pictures by Dataxxl - Photobucket

 

P.

[car2403]

Sorry Poppay, but how much is the claim for? You'll find this on the Court claim form N1.

[Poppay2]

Sorry Poppay, but how much is the claim for? You'll find this on the Court claim form N1.

hI Car2403

 

Thats the one form I dont have with me here at work, I had intended to come online from home last night, but i felt incredibly queasy and dizzy when I got home and had to lie down and I just conked out for the night. (feel ok now)

On Cobbetts reply to the CPR18 request, the figure they have put in that is £6,070.

 

I will get the N1 out as soon as I get home this evening.

P.