1st Credit/moon beever Claimform - AA HBOS***Settled Tomlin Order***

[gill5blue]

Hi,

Reply to Amended defence

1. The claimant denies at paragraph 1 that the particulars of claim are vague and generic. The claim was issued at the County Court Bulk Centre in Northampton and the Particulars of claim are subject to a strict word limit. The main issues in the claim are detailed in the Particulars of Claim issued on --/08/2014. To date the defendant has made no request to the claimant seeking clarification and/or further information in respect of the particulars of claim.

2. As to paragraph 2:

a) The Defendant admits applying for the credit card which is the subject matter of this claim.

b) The Claimant denies that the application form did not contain the terms and conditions and puts the defendant to strict proof in this respect.

c) The Claimant cannot admit or deny if the Defendant requested a copy of the terms and conditions allegedly received on --/06/2009 and --/04/2009 because the account was not assigned to the Claimant until --/06/2013. Indeed the Defendant does not state who he requested the terms and conditions from.

 

1. 
   
2. Further the Claimant cannot admit or deny if the terms supplied were different to the terms held by the claimant on this account as disclosed to the Defendant. Again the Defendant is put to strict proof.
   3. As to paragraph 3:
   a) The date of the default is –/11/2009. This is the date supplied by the original creditor to the Claimant upon assignment of the account. It is the date the Defendant was required to remedy the breach failing which the account would be terminated. It is noted that the defendant expressly refers to being in possession of 2a default notice bring dated –/06/20092 for this account. Assuch the Defendant admits to receiving a default notice in respect of this account.
   b) As the assigned creditor the Claimant does not issue a Notice of Sums of Arrears because the account has already terminated prior to assignment. The Defendant is put to strict proof that he did not receive the notices from the original creditor.
   c) The Claimant has already disclosed the signed application form and terms and conditions as evidence of how the Defendant entered into the agreement. Indeed the Defendant admits he applied for the credit card in his amended defence.
   d) the Claimant has disclosed how the sum claimed is reached having disclosed the statements of the account to the Defendant and Particulars of claim details the costs and interest claimed.
   e) The Claimant has disclosed how the agreement was terminated by disclosing a copy of a template default notice as supplied by the original creditor and the date of the default. Indeed the Defendant admits that he had sight of a Default notice dated –/06/2009, and he accepts “ that the ageement was then terminated”
   f) The Claimant has disclosed a copy of the notice of assignment dated –/07/2013 sent to the defendant in compliance with section 136 of the Law of Property Act 1925 as evidence of a legal assignment.
   4. As to paragraph 4 the Claimant denies that CPR 16.5 specifically requires the Claimant to prove the allegation. It refers to the content of defence and therefore does not aspply to the Claimant. However notwithstanding the incorrect provision the Claimant accepts that it must prove its claim.
   5. As to paragraph 5 the Claimant denies that it is in breach of section 136 of the Law of Property Act 1925 and Section 82A of the Consumer Credit Act 1974. These sections refer to the requirements for written notification to the debtor of a legal assignment. The Claimant complied with those sections when it sent the notice of assignment dated –/07/2013 to the Defendant at his lst known address, which for the avoidance of doubt is his current address for service of this claim.
   6) As to paragraph 6 the Claimant denies that it is not entitled to the relief claimed or any relief.
   

They said a copy of this has been filed at the court.

 

 

Is it what you expected?

Gill

[gill5blue]

Hi

I also received a letter today informing me of the court costs for next court date and said this has also been filed at court.

(

Gill

[gill5blue]

Hi dx and/or andy

Is it what you expected?

I'm expecting to go to court again, any words of advice would be appreciated

Gill

[Guest]

when is the next court date, and what is it for?

[gill5blue]

Hi Ford, court is on Monday and it is for summary judgement

Gill

[Guest]

on monday!

ok.

rather than a witness statement, which they shld do, they have done what you posted. so, you need to be prepared to counter/rebut what they say. if required. do yr costs as well.

but, they are required to prove their application and claim, not you. is their application and their claim. what they're trying to do is discharge the burden of proof on to you. that can only be done once they can show their case, for you then to rebut. technicalities. need andy to look in. wait a bit.

am not up to speed with yr thread, so excuse if wide.

[gill5blue]

Ford,

They have already put in a witness statement

[Guest]

Ford,

They have already put in a witness statement

 

oh ok. is that on thread? or is it post #175?

 

it is for them to show what they claim. not you. but, be prepared to rebut if poss what they say/show.

[gill5blue]

yes the ws should be on the thread,

 

 

in court, we bought up things that were not in our defence

and the judge said that they should have been,

 

 

so she gave us a second chance to put in a 'complete' defence, (we had to pay court costs)

and what I typed out is their reply to our defence

 

Gill

[Guest]

for eg their para 1 b asking you to prove.

is for them as an assignee/claimant to prove not required not you. etc

 

you then being prepared to rebut/argue anything they say. as per yr defence and anything else they mention.

 

need andy to look in in time.

[gill5blue]

thankyou ford

[AndyOrch]

Hi gill

 

 

So that's what they are relying on for summary judgment ? Talk about hear no see no speak no evil:madgrin:

 

At their point 1 b...they state they have no need to serve a Notice of Sums in Arrears as the agreement was terminated.

 

Under s87, a creditor or owner must give the debtor a default notice in the prescribed form if he wishes to Terminate the agreement

 

Thereafter the creditor or owner will be required to give to the debtor a notice of sums in arrears at intervals of six months until he ceases to be in arrears and has paid all sums of interest or default sums that are payable in relation to his arrears, or a judgment is made in relation to the sums payable under that agreement.

 

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement.

 

Regards

 

Andy

[gill5blue]

Hi gill

 

 

So that's what they are relying on for summary judgment ? Talk about hear no see no speak no evil:madgrin:

 

At their point 1 b...they state they have no need to serve a Notice of Sums in Arrears as the agreement was terminated.

 

Under s87, a creditor or owner must give the debtor a default notice in the prescribed form if he wishes to Terminate the agreement

 

Thereafter the creditor or owner will be required to give to the debtor a notice of sums in arrears at intervals of six months until he ceases to be in arrears and has paid all sums of interest or default sums that are payable in relation to his arrears, or a judgment is made in relation to the sums payable under that agreement.

 

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement.

 

Regards

 

Andy

 

 

 

The last notice of sums of arrears we received was 13th May 2014, so they have covered themselves there.

What else is in their reply to my defence is incorrect?

Getting worried today

Gill

[gill5blue]

Hi Andy,

even though they state that about the sums of arrears, I have received them.

now confused

Gill

[gill5blue]

Hi Andy,

Sorry the last sums of arrears was june 2014 (not may)

Gill

[AndyOrch]

Who sent it?

[gill5blue]

hi Andy

1st credit sent it

It is for the whole amount

Gill

[AndyOrch]

What date does the claimant allege the debt was assigned?

[gill5blue]

june 2013

[AndyOrch]

Just bringing the main 3 posts forward ...it easier to check them together.

 

In order for us to help you we require the following information:-

 

Claimant 1st credit

Date of issue –

 

What is the claim for –

The claimant claims the sum of £13k for debt and interest.

On the 01.04.2004 the defendant entered into an agreement with AA personal finance ltd for a credit card ref no 9999.

On the 01.11.2009 the defendant defaulted on the agreement with outstanding balance of £12k

the debt was assigned to 1st credit for the sum of £12k.

Notice of assignment was sent to defendant in accordance with S.136 law of property act 1925. and

claimant claims

1. the sum of £12k

2. Statutory interest pursuant to section 69 of the county court act 1984 at a rate of 8%

per annum from 01.07.2013 to 01.08.2014 £1000.00 and 2.49 daily rate until judgement or sooner payment.

 

What is the value of the claim? £13k

Is the claim for a current account (overdraft) or credit/loan account or mobile phone account? credit card

When did you enter into the original agreement before or after 2007? before

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. debt purchaser

Were you aware the account had been assigned – did you receive a Notice of Assignment? yes

Did you receive a Default Notice from the original creditor? yes

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? no

Why did you cease payments? i believed they have an unenforcable credit agreement

What was the date of your last payment?31.03.2009

Was there a dispute with the original creditor that remains unresolved? no

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan? no

 

Particulars of Claim (for reference only not to be included in the defence)

 

The claimant claims the sum of £13k for debt and interest.

 

1. On the 01.04.2004 the defendant entered into an agreement with AA personal finance ltd for a credit card ref no 9999.

 

2.On the 01.11.2009 the defendant defaulted on the agreement with outstanding balance of £12k

 

3. the debt was assigned to st credit for the sum of £12k. .Notice of assignment was sent to defendant in accordance with S.136 law of property act 1925. and

 

claimant claims

1. the sum of 1£2k

2. Statutory interest pursuant to section 69 of the county court act 1984 at a rate of 8%

per annum from 01.07.2013 to 01.08.2014 £1000.00 and 2.49 daily rate until judgement or sooner payment.

 

 

Proposed amended particularised Defence

 

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted, the defendant recalls completing an application form for a 'AA' credit card (BoS) on or around 1st April 2004.The application referred to various terms and conditions contained within the application which were not present on the application form.

 

Full Terms and conditions were not present at the time of applying but were supplied later 04/06/2009 after being requested, the terms and conditions supplied on 04/06/2009 are different to the terms and conditions relied upon in the claimants witness statement for Summary Judgment.

 

Since that date numerous requests under section 78 have been made to various DCA,s...including the claimant and all have failed to comply with this request in full being that the request is deficient of the true Terms and conditions thus they remain in default of section 78 (1).

 

It is also therefore averred that the application fails to satisfy section 127 (3) of the CCA1974.

 

The claimants reference in their Witness Statement to Carey v HSBC is irrelevant with regards to enforcement.

 

3. Paragraph 2 is noted, however their date is incorrect.....as I recall a default Notice being dated 20th June 2009.It is accepted that the agreement was then terminated.

 

Not withstanding the above it is brought to the courts attention that neither the BOS or 1st Credit have ever issued Notice of Sums in Arrears since the default date pursuant to sec86C and 86D of the CCA1974 and therefore the creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.

 

Therefore with the court’s permission the Claimant is put to strict proof to:

 

(a) show and disclose how the Defendant has entered into an agreement; and

 

(b) show and disclose how the Claimant has reached the amount claimed for;

 

© show how the agreement was legally terminated to allow the claimant relief.

 

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5, it is expected that the Claimant prove the allegation that the money is owed.

 

5. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act

and Section 82A of the consumer credit Act 1974.

 

6. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

STATEMENT OF TRUTH

 

The contents of my defence are true to the best of my knowledge and belief.

 

Signed

 

Dated this day……………………..2015

 

 

Reply to Amended defence

 

1.The claimant denies at paragraph 1 that the particulars of claim are vague and generic. The claim was issued at the County Court Bulk Centre in Northampton and the Particulars of claim are subject to a strict word limit. The main issues in the claim are detailed in the Particulars of Claim issued on --/08/2014. To date the defendant has made no request to the claimant seeking clarification and/or further information in respect of the particulars of claim.

 

2. As to paragraph 2:

 

a) The Defendant admits applying for the credit card which is the subject matter of this claim.

b) The Claimant denies that the application form did not contain the terms and conditions and puts the defendant to strict proof in this respect.

c) The Claimant cannot admit or deny if the Defendant requested a copy of the terms and conditions allegedly received on --/06/2009 and --/04/2009 because the account was not assigned to the Claimant until --/06/2013. Indeed the Defendant does not state who he requested the terms and conditions from.

 

1. 
   
2. Further the Claimant cannot admit or deny if the terms supplied were different to the terms held by the claimant on this account as disclosed to the Defendant. Again the Defendant is put to strict proof.
    
   3. As to paragraph 3:
    
   a) The date of the default is –/11/2009. This is the date supplied by the original creditor to the Claimant upon assignment of the account. It is the date the Defendant was required to remedy the breach failing which the account would be terminated. It is noted that the defendant expressly refers to being in possession of 2a default notice bring dated –/06/20092 for this account. Assuch the Defendant admits to receiving a default notice in respect of this account.
   b) As the assigned creditor the Claimant does not issue a Notice of Sums of Arrears because the account has already terminated prior to assignment. The Defendant is put to strict proof that he did not receive the notices from the original creditor.
   c) The Claimant has already disclosed the signed application form and terms and conditions as evidence of how the Defendant entered into the agreement. Indeed the Defendant admits he applied for the credit card in his amended defence.
   d) the Claimant has disclosed how the sum claimed is reached having disclosed the statements of the account to the Defendant and Particulars of claim details the costs and interest claimed.
   e) The Claimant has disclosed how the agreement was terminated by disclosing a copy of a template default notice as supplied by the original creditor and the date of the default. Indeed the Defendant admits that he had sight of a Default notice dated –/06/2009, and he accepts “ that the ageement was then terminated”
   f) The Claimant has disclosed a copy of the notice of assignment dated –/07/2013 sent to the defendant in compliance with section 136 of the Law of Property Act 1925 as evidence of a legal assignment.
    
   4. As to paragraph 4 the Claimant denies that CPR 16.5 specifically requires the Claimant to prove the allegation. It refers to the content of defence and therefore does not aspply to the Claimant. However notwithstanding the incorrect provision the Claimant accepts that it must prove its claim.
    
   5. As to paragraph 5 the Claimant denies that it is in breach of section 136 of the Law of Property Act 1925 and Section 82A of the Consumer Credit Act 1974. These sections refer to the requirements for written notification to the debtor of a legal assignment. The Claimant complied with those sections when it sent the notice of assignment dated –/07/2013 to the Defendant at his lst known address, which for the avoidance of doubt is his current address for service of this claim.
    
   6) As to paragraph 6 the Claimant denies that it is not entitled to the relief claimed or any relief.
   

 

They said a copy of this has been filed at the court.

 

 

Is it what you expected?

Gill

[AndyOrch]

Give me time to run through it gill..to refresh myself.

 

What date is the SJ hearing?

[gill5blue]

ok Andy,

I have to go out soon but I will be back on later,

hearing is Monday

Gill

[AndyOrch]

Excellent that allow me plenty of time to pick holes:wink:

[AndyOrch]

"To date the defendant has made no request to the claimant seeking clarification and/or further information in respect of the particulars of claim."

True?

 

 

 

I will just point out their error on CPR 16.5 in case their legal are viewing...

 

"4. As to paragraph 4 the Claimant denies that CPR 16.5 specifically requires the Claimant to prove the allegation. It refers to the content of defence and therefore does not apply to the Claimant. However notwithstanding the incorrect provision the Claimant accepts that it must prove its claim."

 

CPR16.5 (4)

 

(4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

 

Andy

 

I will add more later.

[gill5blue]

"To date the defendant has made no request to the claimant seeking clarification and/or further information in respect of the particulars of claim."

 

True?

Not true.

I requested a copy of the consumer agreement in March 2009 and repeatedly until we got to court.

Gill