Phoenix/Cater Claimform - Joint LTSB OD Debt **WON - DISCONTINUED**

[madi's mum]

Now just to clarify my next move:

1. Complete Application Notice as above to include this morning’s amendment.

 

2. Attach a copy of our defence.

 

3. Attach our letter.

 

4. Include court fee

 

5. Do not complete Counter Claim Detail, as per the defence letter where we say

 

‘The only reason we have not fully particularised our defence or submitted a counter-claim, is solely attributable to the Claimant’s wholly unreasonable behaviour, in refusing to provide the information we requested, to respond to their claim.’

 

However, we are submitting a particularised defence aren’t we?

 

Sorry to be pedantic but I don’t want to contradict myself in this AN.

 

Does this look right to you?

 

Cheers

[AndyOrch]

Now just to clarify my next move:

 

 

 

 

1. Complete Application Notice as above to include this morning’s amendment. Correct

 

2. Attach a copy of our defence. Correct

 

3. Attach our letter. Correct

 

4. Include court fee Correct

 

5. Do not complete Counter Claim Detail, as per the defence letter where we say

 

‘The only reason we have not fully particularised our defence or submitted a counter-claim, is solely attributable to the Claimant’s wholly unreasonable behaviour, in refusing to provide the information we requested, to respond to their claim.’ not quite we have the detail to now submit the CC so omit "or submitted a counter claim" or change to at this stage, the AN is requesting permission to submit a Counter Claim at a later stage to the process which we will do seperatly after you have clarified with your CC what form you need and how they wish ou to submit it

 

However, we are submitting a particularised defence aren’t we? Correct

 

Sorry to be pedantic but I don’t want to contradict myself in this AN.

 

Does this look right to you?

 

 

Cheers

 

Hope the above clarifies

 

Regards

 

Andy

[madi's mum]

Thanks Andy - I'll go through it all now and update accordingly.

[AndyOrch]

The problem you have when submitting a counter claim is that you walk a fine line in other words it has to balance with your defence.You can not counter claim if you are stating that you have no recollection of any alleged debt.By way of your application you are ordering the unfurnished information to be provided if they still fail then you will request a strike out so we then forget the counter claim.

If we word the AN and attached letter in a way that states provide said missing information or a counter claim will follow you have more bargaining power and the case is on the other foot so to speak.All bases covered.

 

Regards

 

Andy

[remus]

Hi, is there any update madi's mum?

[madi's mum]

Happy New Year!(?)

 

OK – sorry for the delay with the update, here goes:

 

We submitted our Application Notice as above and the Judge issued the following order:

 

1. The Claimant’s shall within 14 days of the service of this Order provide the Defendants with the information and documents requested in their letter dated 24 July 2008.

 

2. In default the claim shall be struck out with costs to the Defendant.

 

We waited for the time to elapse and had heard nothing from the Claimants so rang the court and lo and behold the Claimants had filed their own Application Notice requesting a hearing to have the Order set aside but in their usual backhanded manner had failed to send us a copy of this so whereas we thought we were on the home straight and were about to apply to have the Judge rule in our favour we in fact now have a date to attend court for their application notice hearing!

 

I’ve reproduced the main content of their AN here:

 

Part A

We intend to apply for an order that the Order of Deputy District Judge … dated ------------ in this matter be set aside.

 

Because it is not within the Claimant’s power to comply with all of the requests detailed in the letter of the Defendant dated -- ------ save as previously served on the Defendant or as attached to this Application. Further the failure to produce these documents and/or recordings does note mean that the debt is not lawfully due to the Claimant by the Defendant. A Notice of Assignment has been produced together with detailed statements showing the Defendant has incurred the balance outstanding in respect of account no: 000000000.

 

Part C

We wish to rely on the following evidence in support of this application:

 

 

1. The Claimant cannot produce an executed credit agreement with terms and conditions as debt relates to the balance outstanding on the Defendant’s Platinum Plus Bank Account being an unauthorised overdraft and no such credit agreement exists. Detailed Statements have been provided from the originating creditor Lloyds TSB Plc.

 

2. The Claimant has already supplied or provides hereto all records under its control:

 

a. The Claimant has had no telecommunications with the Defendant and has no recordings or transcripts of recordings of telecommunications;

 

b. The Claimant has already provided the Defendant with a screen print of the notes on the Defendant’s account. No other notes are available.

 

c. Notice of Assignment of the debt to the Claimant was served in a letter dated 16 November 2007. A reproduction copy of this notice has been supplied to both the Defendant and the Court. The Claimant’s internal systems do not in the interest of efficiency allow for the retention of copies of individual letters as they are system generated letters. The same is true of the Default Notices. The system notes confirm that these were sent. The Claimant’s issues Notices by First Class Post. No proof of posting is available.

 

d. The Claimant is not aware of any insurance relating to this account.

 

e. No collection charges have been added to this account.

 

f. Details of all fees and charges have already been supplied to the Defendant and the Court in attached statements. No other agency fees have been applied to the account.

 

g. Data has been processed in accordance with the relevant debt collection guidelines.

 

h. The Claimant has not provided any third party with the Defendant’s details save Fredrickson International Limited and Bryan Carter & Co Solicitors.

 

i. All statements that are available have been supplied to the Defendant and the Court and we attach hereto.

 

 

3. Attached 00000000 Sale Agreement – FRED0000 and 00000000 Sale Schedule no 1 FRED0000.

 

There is not a separate Deed of Assignment to the this Agreement. As per paragraph 6(a) of the Agreement, this master sale agreement, taken together with the Sale Schedules executed under it, represent the entire agreement between the parties relating to the Sale Accounts. Also see Annex 1 clause 2.3 Assignment of Receivables.

 

So the hearing to have our Order set aside is scheduled for the beginning of February! I’m not sure what to do now – whether to offer a settlement or go along to the hearing on the grounds that they have not complied with previous Orders to produce all the relevant paperwork.

 

As a matter of interest the reproduction copy of the Notice of Assigment letter they refer to in both Part A and Part C 2.c refers to an MBNA Credit Card Account and shows an account number which includes the digits of the bank account number but has others added on so is not a true reflection of the original account number.

 

I should appreciate some advice on what our next move should be.

 

Madi’s Mum

:-?

Edited January 26, 2009 by madi's mum
included sensitive information in error

[remus]

Hi madi's mum,

hopefully by bumping this up, someone will be able to advise you on what to do next.

Is that your actual account number? if so I would edit it out.

[madi's mum]

Hi again, if anyone out there has some advice on how i should approach this court appearance at the end of this week, i would very much appreciate it.

[pompeyfaith]

Hiya Madi's mum

 

You have nothing to worry about believe me it is nothing like a criminal court case i put some links below which i hope will put your mind at rest:

 

The Consumer Forums

 

The Consumer Forums

 

The Consumer Forums

 

Regards

 

Pompeyfaith

[madi's mum]

Hi Pompeyfaith

 

thanks very much for the quick response I'll be sure to have a good read through - are you able to comment on the fact that the paperwork they have provided has the incorrect detail on it?

 

Also, am I correct in thinking that their defence:

 

c. Notice of Assignment of the debt to the Claimant was served in a letter dated 16 November 2007. A reproduction copy of this notice has been supplied to both the Defendant and the Court. The Claimant’s internal systems do not in the interest of efficiency allow for the retention of copies of individual letters as they are system generated letters. The same is true of the Default Notices. The system notes confirm that these were sent. The Claimant’s issues Notices by First Class Post. No proof of posting is available.

 

is in breach of s196 of the Law of Property Act 1925 as their internal systems should keep original copies if they wish to pursue the debt through the court?

[pompeyfaith]

c. Notice of Assignment of the debt to the Claimant was served in a letter dated 16 November 2007. A reproduction copy of this notice has been supplied to both the Defendant and the Court. The Claimant’s internal systems do not in the interest of efficiency allow for the retention of copies of individual letters as they are system generated letters. The same is true of the Default Notices. The system notes confirm that these were sent. The Claimant’s issues Notices by First Class Post. No proof of posting is available.

 

reproduction thats not good enough it has to be a copy of the original and yup tell me a business that does not keep adequate records

[madi's mum]

Evening all

 

Firstly apologies if these appear to be the ramblings of an idiot – despite the advice received so far (thank you to all those who have contributed) I am still extremely nervous about going into court tomorrow morning.

 

I am confident of what to expect thanks to the links provided by pompeyfaith but would very much appreciate it if anyone can confirm the following:

 

My argument against the Claimants having the court order set aside to produce the documents requested by letter under the Civil Procedure Rules Part 18 is basically that they should be able to produce copies of the original documents and proof that I had received them i.e. sent by recorded delivery as per s196 of the Law of Property Act 1925? Would I be correct in thinking that without this they have no right to pursue the debt?

 

To me it looks like they are admitting that they knowingly commenced these proceedings without holding all the relevant paperwork, should I make this point to the Judge?

 

If anyone has a little time to review this thread and offer up any additional advice I will be very grateful – as it is I don’t think I’ll get much sleep tonight! (Even if my tiny terrorist gives it a rest and doesn’t do his usual lets have a chat at 3 in the morning routine!).

 

Oh one more question, this case is in both mine and the other half’s name, the OH is not attending court with me tomorrow do I need to take a letter from him giving me authority to speak on his behalf?

 

Hope to hear from someone soon!

[madi's mum]

Bump!

[madi's mum]

OK- need to try to get some sleep now but if any of you good folk are burning the midnight oil and have any words of wisdom for me I will be checking this thread before I leave for court in the morning.

 

Sleep tight all.

Madi's Mum:)

[madi's mum]

Bump

[Craftygirl42]

Madi's mum - sorry you didnt get the help you needed re your case.

 

I am in the process of working my way through a court case re an overdraft and have been reading your thread. I was wondering how you got on in Court, and hope it all went ok.

[madi's mum]

Hi Craftygirl42

 

Court was postponed due to bad weather! I'm now waiting for a new date but I will keep this thread updated with the outcome - hope its been of some use to you to date - keep smiling!

 

Madi's Mum

[Craftygirl42]

Good luck when you get a new date. I suppose it gives you a bit extra time to read up on everything and hopefully gain some more advice on anything you arent sure about.

 

Good luck and hope it all goes well

[wakieblue]

Subbing

[madi's mum]

OK – since last posting things have moved on! Got to have my ‘Day in Court to which the upshot was that the judge said that the Claimants had not put together a very good case and he ruled that they had to file an amended fully pleaded Particulars of Claim to include, but not limited to :

 

« How the Claimant acquired the debt;

« How and when the Claimant gave notice of assignment to the Defendants;

« The method of service used to notify the Defendants of the assignment;

« How and when the Claimant provided the Defendants with a default notice.

 

I have reproduced their amended particulars of claim below and should appreciate any help on where to go with this next?

 

 

1. The following is in substitution of the entirety of the Claimant’s Particulars of Claim issued in this action, which should be treated as attached hereto and deleted in red ink.

 

2. The Defendants held a bank account under account number: 00000000 (the Account) for the purposes of conducting monetary transactions.

 

3. The Defendant’s operated an overdraft facility on the account with the consent of the original creditor bank plc however the credit limit was exceeded without authorisation. Copies of the statements which show the credit limit and details of transactions are now produced and attached to these pleadings.

 

4. The debt was assigned to Phoenix Recoveries (UK) Limited S.a.r.l. by a Master Account Sale Agreement for the Sale of Non-Performing Debts dated xx xxxx made between bank plc (12) and Phoenix Recoveries (UK) Limited S.a.r.l. (2) (Master Sale Agreement) a copy of which is now produced and attached to these pleadings (sensitive commercial details have been removed for reasons of confidentiality). The Claimant has also produced and attached to these pleadings a letter confirming that the account 000000000 was included in the aforementioned Master Sale Agreement. The Defendants were made aware of the assignment by way of letters sent on xx xx xxxx by both the original creditor and the Claimant by first class post and the best available reproductive copy of which is produced and attached to these pleadings the original having left control of Claimant on the date of posting. The Claimant alleges that the same were properly served under s196 or the Law of Property Act 1925 in that they were served on the last known address of the Defendant and the Notice was not returned undelivered.

 

5. The overdraft facility operated on this account was a regulated debtor-creditor agreement within the meaning of sections 8 and 13© of the Consumer Credit Act 1974 (“the Act”), providing for ‘running-account credit’ within the meaning of section 10(1)(a) of the Act however Overdrafts have Part V exemptions (form and content) from under the Act and there is no signed agreement by the Defendants for the authorised overdraft.

 

6. The Claimant’s claim is for the balance due on the Account which is now all due and payable.

 

7. The Defendant defaulted under the terms of the Account particularly the agreement to remain within the agreed credit limit for the overdraft facility. Notice of the default was sent to the Defendants by the original creditor on xx xx xxx by first class post to the last known address of the Defendants and was not returned undelivered and the best available reproductive copy of which is attached to these pleadings the original having left the control of the Claimant on the date of posting. A final demand was sent to the Defendants by the original creditor using the same method of posting on xx xx xxxx.

 

8. By reason of the matters aforesaid, the total balance outstanding and owed by the Defendant to the Claimant on the account is £XX,XXX plus costs.

 

9. Further, the Claimant claims interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum.

 

10. The Claimant reasonably anticipates that the total value of the claim will exceed £15,000

 

AND the Claimant claims:

 

 

1. The said sum of £XX,XXX

2. Interest thereon pursuant to section 69 of the County Court Act 1984 to the date of issue, amounting to £XXXX and continuing a the daily rate of £X

3. Costs

 

 

In the meanwhile I am working on my defence and will post it later for critique.

 

thanks for looking

 

Madi's Mum

[madi's mum]

bump please

[madi's mum]

Have now had time to compose our defence and have posted it in its entirety below - we should really appreciate some feedback on it before submitting it but I do need to have it in the post by close of business tomorrow.

 

One other point, should we claim for costs at the end?

 

Hope someone can give me some guidance.

 

Thanks for reading!

 

 

In the Xxxxxxx County Court

 

XXXXXXXX

 

 

Between

 

 

 

 

 

 

 

 

 

PHOENIX RECOVERIES (UK) LTD S. RE: PHOENIX RECOVERIES (UK)LIM

 

 

Claimant

 

 

 

and

 

 

 

 

 

 

MR A N OTHER & MISS A N OTHERONE

 

 

Defendants

 

 

 

 

DEFENCE

 

 

1.

We, A N OTHER and A N OTHERONE of Nomansland, UK are the defendants in this action and make the following statement as our defence to the claim made by PHOENIX RECOVERIES (UK) LTD S. RE: PHOENIX RECOVERIES (UK)LIM.

2.

It is denied that any Notice of Assignment was ever received and we put the Claimant to strict proof that said document in the prescribed format was delivered to us in accordance with s196(4) of the Law of Property Act 1925:

“(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1 by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

 

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

 

3.

The balance due on the account at the time of the alleged re-assignment was £XX,XXX.XX as per sheet XX issued XX/XX/06 which shows the closing balance on the account. The Defendants dispute this amount as it includes penalties charges totalling £X,XXX.XX, a full breakdown of which is attached appendix A, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd 1915, under The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable.

 

 

4.

It is denied that any Default Notice in the prescribed format was ever received and we put the Claimant to strict proof that said document in the prescribed format was delivered to us in accordance with s196(4) of the Law of Property Act 1925:

“(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1 by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

It is once again noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

 

We note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If THE BANK sent a default notice that includes unlawful 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.

 

 

5.

Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. It is therefore averred that this claim is brought in relation to an overdraft which is credit as defined within the Consumer Credit Act 1974, the defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

(3) Interest shall not be payable under this Order where the relevant

judgment—

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

 

Statement of Truth: The Defendants believe that the facts stated in this defence are true.

 

Signatures:

 

Printed Name:

 

Date:

 

Dated this 15th Day of May 2009

 

Cheers

 

Madi's Mum

Edited May 14, 2009 by madi's mum
amended defence

[Craftygirl42]

Madi's mum, if you want someone on the site team to take a look, click on the red triangle at the bottom of your post and they will look at your mesage.

 

Good luck with your fight

[madi's mum]

Thanks for that Craftygirl42 - I'll give it a go!

 

Madi's Mum:)

[caro]

Hi madi's mum. Sorry it's taken so long to respond.

 

Have you sent in your defence now or do you still want it checked?