ihpj vs. Citi Cards - court paper received -claim struck out!! now what???

[ihpj]

Have you sent Enron a PM?

 

Yup, but waiting on a reply.

[ihpj]

** UPDATE **

 

I have received a reply from Morgans, to which they have supplied 'proof' copies of two docuemtns:

 

1. Notice of Assignment: They provide a template letter ('Welcome to CABOT') in which they notify me that they have 'bought the account' from Citi and attached are 1 page T+Cs (relating to CABOT) dated 09/2010.

 

2. Demand for Payment: Well thats the letter they sent shown in Post #151 (I then subsequently sent them a reply in Post # 156).

 

Those were the two things mentioned in their POC and I now have copies. No response yet for my CPR18 request (Post # 172).

Edited June 17, 2011 by ihpj

[ihpj]

** THOUGHTS **

 

* I have checked the copy letter dated 09/2010 they have supplied above, and compared this to my ow copy of the original. What I have found is that these letters only differ in terms of presentation and lay out, material details (such as account #, amount owing etc. ) are correct.

 

* Also, in their attachment, they have NOT included a letter from Citi (which I received from them originally) - relying simply on their own correspondence to confirm 'account sale'.

 

I was wondering if the above had any real significance?

[the_shadow]

** THOUGHTS **

 

* I have checked the copy letter dated 09/2010 they have supplied above, and compared this to my ow copy of the original. What I have found is that these letters only differ in terms of presentation and lay out, material details (such as account #, amount owing etc. ) are correct.

 

* Also, in their attachment, they have NOT included a letter from Citi (which I received from them originally) - relying simply on their own correspondence to confirm 'account sale'.

 

I was wondering if the above had any real significance?

 

Not as far as I'm aware... no

 

S.

[the_shadow]

** UPDATE **

 

I have received a reply from Morgans, to which they have supplied 'proof' copies of two docuemtns:

 

1. Notice of Assignment: They provide a template letter ('Welcome to CABOT') in which they notify me that they have 'bought the account' from Citi and attached are 1 page T+Cs (relating to CABOT) dated 09/2010.

 

2. Demand for Payment: Well thats the letter they sent shown in Post #151 (I then subsequently sent them a reply in Post # 156).

 

Those were the two things mentioned in their POC and I now have copies. No response yet for my CPR18 request (Post # 172).

 

Check that they are not claiming any interest in the POC's from prior to when they say they purchased this debt.

 

S.

[ihpj]

Check that they are not claiming any interest in the POC's from prior to when they say they purchased this debt.

 

It was my understanding that they could not claim any interest under S(69) County Courts Act 1984 for an agreement that falls under the auspices of the CCA? Anyhoo, checking their last correspondence (Post #151), their 'welcome letter' and the POCs, I find the following:

 

1. When they 'bought' the account (09/2010), it amount was £X - and they informed me they were charging 12% per annum interest.

2. Then in Post #151 they tell me my outstanding balance is +£782 - this would be a period of 7 months.

3. In the POC it is now +£90 from point 3.

 

Does that help?

[the_shadow]

Its down to the judge on the day but yes they shouldnt be claiming any interest under s69, the judge may not be aware of the regulation.

 

Sorry cant really get my head around what points 1/2/3 are stating [My bad I'm sure]... the key thing is they are NOT allowed to claim interest unless a) Its mentioned in the original t&c that they can and b) they have notified you by annual statement in that 12 month period they are claiming interest in.

 

S.

[ihpj]

{duplciate of below}

Edited June 25, 2011 by ihpj

[ihpj]

** UPDATE **

 

I have finally received a resposne to my CPR18 request (that i sent in Post #172) in which they confirm the agreement was in written form and that it was regulated under the terms of the CCA 1974.

 

I guess my next step is to issue another CPR31.14 request for this said document that they now confirm exists.

 

What I am struggling with is a form of words that would ensure that they have to provide a true copy of the CCA, with my signature, and not just any old copy. Something that I have been contemplating is the ones I have previously used in my letter (Post # 156), in particular:

 

====================================

 

1. A true copy of the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed; and

 

2. Any further or subsequent notices, terms and conditions relied upon.

 

Please note that my request is not a request for production within the confines of the Consumer Credit Act and Regulations but rather, it is for a copy of the executed agreement, including signatures and all such other notices, terms and conditions as will be relied upon in your claim. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para. 7.3, where a claim is based upon a written agreement, a copy of the contract of documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any conditions incorporated in the contract should also be attahced.

 

====================================

 

But I am unsure if I need to go into such detail at this early stage? As ever, any advice welcome please...

Edited June 25, 2011 by ihpj

[the_shadow]

Surely you dont need to be so technical...

 

On xx/xx/xxxx I made a CPR18 request to confirm that this account and case is based on a regulated agreement, you confirmed in a statement dated xx/xx/xxxx that this account indeed had a written agreement which was covered by the CCA1974, under CPR31.14 I now require you to disclose that written agreement you have now disclosed in your CPR18 response.

 

S.

[ihpj]

** UPDATE **

 

Thanks Shadow, I think I do over think things...but it is only because I reckon this matter will end up at Court. To this effect, I have drafted the following wording:

 

*******************

 

As you have confirmed that a written agreement for this debt exists, and that it is regulated by the Consumer Credit Act 1974, I now require you to disclose this agreement. This letter therefore is for full disclosure and production of a verified and legible copy of this credit agreement; incorporating prescribed notices, the terms and conditions applicable at the time the agreement was executed and my signature.

 

*******************

 

I will then add the above wording into the 'full' CPR31.14 letter. I'm going to send it tomorrow, so if anyone has any better suggestiosn, now is the time!

[newman]

IHPJ

 

I have just spent the last 3 hours reading all of this thread and I have to say it is pure gold - fantastic.

 

I am in an unbelievably similar situation to you with 1st Credit having bought my "debt" from Citi and have now sent me a claim form from Northampton. Basically they have served me with a claim form with a laughable POC which sounds very similar to yours -

 

This is what the notice says

"The claimant claims the sum of 8,898.97 for debt and interest. The defendant was indebted to Citifinancial Europe PLC for credit advanced. The debt was assigned to the claimant. Notice of assignement was given to the defendant.

AND THE CLAIMANT CLAIMS

1 The sum of 6.727.12

2 Statutory interest pursuant to section 69 of the county Court Act 1984 at a rate of 8.00% per annum from 08/06/07 to 20/6/11 2,171.85 & thereafter at a daily rate of 1.47 until judgment or sooner payment

 

IF YOU WISH TO SPEAK TO US REGARDING THIS CLAIM THEN PLEASE CALL 0208 7370

*schedule script"

 

Interestingly they make no mention of the fact that the account was in dispute for the 33 months (and still is IMHO due to the fact that they havent sent what I asked for) yet they are wanting to collect interest for it. They also don't make mention of the fact that Citi never told me they were defaulting my account and they certainly never sent me a DN. I was in a reduced payment plan with Citi which I actually doubled what I was paying them when I received a Notice of Assignment from them and then a welcome letter a week later from 1st Crud!!!

 

If you want to have a laugh then the full sorry story which is great for a laugh is here

Post #11 gives all the history and the rest is the story so far. You are a little way in front of me so if you dont mind I have copied all of your letters as they are excellent and I am about to write to 1st Crud again. I have already sent them one letter yesterday with a different approach which still gives me the option of employing the suggestions and proceses recommended here. I have 19 pages on a word doc of all the appropriate letters, tips hints laws etc etc as well as loads of other threads now stored in favoriotes, which I am sure is going to help me no end.

 

In my case it took 1st crud 33 months to come up with what they claim is my CCA - basically a pile of photocopied paper with my name and account number stuck on the front.

 

Having now studied this thread and all of the others that are refferred to within it I feel a lot more confident in being able to go ahead with my approach to what 1st Crud have done. I was scared at the start of this process but now I am just mad and I am am going to make it my business to report them to as many people as I can and make it as difficult as I can for them and their cohorts (connaughts). I have threatened in the past to reprt them but haven't but now enough is enough and my latest letter I said I am going to report them for harrasment which will be my next letter. OFT, Trading Standards & My MP here we come (not sure it will do any good but it will make me feel a lot better about it)

 

I don't want to hijack your thread but I would love to stay in touch with you as you and I are both at very similar stages with the same bunch of lovely men & women!!

Edited June 28, 2011 by newman
spelling mistakes

[cymruambyth]

Hi with reference to the interest being charged after purchase ....... one DJ tod me that I was lucky that they were only claiming 12% because the amount charged by the OC was much greater. I tried to argue that I hadn't been notified of this before it was added etc and that if they varied the agreement I shoul have ha a copy of the new t&cs. All ignored.

[the_shadow]

Hi with reference to the interest being charged after purchase ....... one DJ tod me that I was lucky that they were only claiming 12% because the amount charged by the OC was much greater. I tried to argue that I hadn't been notified of this before it was added etc and that if they varied the agreement I shoul have ha a copy of the new t&cs. All ignored.

 

Hmm yes, it is down to a judge on the day, all we can do is quote the relevant CCA1974 / CCA2006 regulations regarding interest and hope we can convince the judge that its just to decide in our favour.

 

S.

[ihpj]

** ADVICE / UPDATE **

 

 

Case So Far:

 

OK, I sent off my CPR 31.14 request (post # 168) in response to issuance of Court Papers. I received a reply (post # 177) and then sent out a CPR18 (post # 172). Again, they replied to my CPR18 request, so I submitted a second CPR31.14 (post # 186) for disclosure of the CCA - but have heard nothing.

 

I sent my CPR31.14 letter on 26/06 - 1st class recorded - and today is the 7th day. But i guess since they will have been deemed to have received the letter on 27/06, they have until tomorrow (05/07) to reply? If they have not, they have had their full 7 days and would be in default of my CPR31.14 request.

 

Question is, do I now submit the best defence I can, but state they are in default of my CPR31.14 request and in parallel pursue a strike out action or should I be going down the route of asking the Court to compel them to disclose said document?

 

I'm surprised they have not replied so far, but the 11th hour is still yet to chime IF (and it is a IF) they have not replied after 7 days, what should be my best course of action folks?

 

Many thanks...

[the_shadow]

Depends on ur deadlines. Whenb does the defence have to be in? If u have time a quick letter faxed to them advising you need the documents or an extension to file bu return or you'll seek an application for disclosure OR issue an appliction for duisclosure now. IMHO

S.

[the_shadow]

Apols for a) the typing, I'm using mobile and b) the overuse of OR

 

 

S.

[ihpj]

DoH! Can't believe I didn't include the all important date: 06/07 by 1600HRS.

 

I'm in two minds about applying for the disclosure order. On the one hand, by asking for one, it places me on the offensive but also encourages them to find something - which I don't really want. If I go strike out, then again, the Judge might suggest the disclosure order instead and deny my application [for strike out] and I am back to square one.

 

However, if I scribble out a defence and include their non-compliance with my latest CPR31.14 request, then they might not progress the matter (because they would not be compelled to find said document) and might simply let the matter lapse (i.e. 'stayed) as has happened in my other case where proceedings were issues, I submitted my limited/embarrassed defence and the other party never replied within the set time frames - the case has been stayed in the system for the last 14 months.

 

Not sure I really want them to be forced into a situation where they have to actually 'look' for the CCA. I know that 7 days expires tomorrow (05/07) so all this might be a moot point. But when the post has dropped in, and IF their reply is not therein, I need to be in a position to submit a defence methinks.

 

I wish I could get help from the other members of the site team/learned members - right now it just seems the ihpj and shadow thread

[the_shadow]

Have asked site team if they can help if possible but didn't realise timescales were so tight. Do you have the basis of a defence to file if u were to decide that's the path to take?

 

S.

[ihpj]

Have asked site team if they can help if possible but didn't realise timescales were so tight. Do you have the basis of a defence to file if u were to decide that's the path to take?

 

S.

 

Working on that right now!

 

But I am kicking myself for not asking them about 'date of default' when I sent in my CPR18 request originally. Useful only because I could have asked for the copy of the DN (the very same DN that Citi never sent but I asked them for clarification way back when that I sent 1st class recorded but enver got a reply to) as well as the CCA. Having two requests not complied with would have looked better!

 

But my defence will be short and to the point:

 

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

 

I, X of X, am the defendant in this action and make the following statement as my defence to the claim made by the claimant .

 

* The claimants particulars of claim are vague and appear to be an abuse of process in that they fail to deal with the basic rules of pleading. The claim is a bulk centre claim, however, the rules on pleading apply even to the bulk centre; furthermore the bulk centre rules and guidelines state that if one cannot properly articulate the claim in the maximum allowed 1024 characters, then one should not use the bulk centre to issue the claim. The Claimants pleadings amount to circa 280 characters, leaving some 744 character available for the Claimant to plead adequately. As the Defendant, I am embarrassed by the claim which faces me.

 

* In light of this I submitted a written request to the Claimant, pursuant to Civil Procedure Rules 31.14, by 1st Class Recorded delivery on asking for disclosure of documents admitted to in the Claimants reply to my CPR18 request of so that I may be able to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

* It is denied that a credit agreement was signed by the defendant, accordingly, s61(1)(a) was never complied with and therefore pursuant to s65(1) and s127(3) the agreement is unenforceable and the Court shall not make an enforcement order.

 

* If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. The Claimant is put to strict proof that the aforementioned agreement was properly executed and has been enforceable at all times since its’ inception.

 

* The Claimant pleads that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

• The general rule

2(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.

 

I believe that the facts stated in this defence are true.

[ihpj]

** UPDATE / ACTION / ADVICE **

 

Got the following from Morgans this morning:

 

The Claimants duty to provide you with documentation in accordance with CPR31.15 is limited to documentation that is or has been in its power, possession, custody or control. The Claimant is the Assignee of your account. Upon assignment, the Assignor retains documentation relating to assigned accounts. If these documents are needed, a request is made to the Assignor. We have made a request to the Assignor and will forward the same upon receipt of the requested documentation.

 

 

Translation:

We don't have the document in our possession and neither does the Claimant. So we have asked the original creditor (Citi) for it. When we get it, we'll let you have a copy.

 

 

** THOUGHTS **

 

This then rasies a question for me:

 

If they do not have this document, how could they then confirm in reply to my CPR18 request, that the agreement is in written form and it is regulated by the CCA1974? - I would guess they would say that, although not having this document in their possession, they believe their client and act on their instructions.

 

Anyhoo, my Defence (of sorts) needs to be submitted by 1600HRS tomorrow (06/07) at the very latest. Now I am in a quandry:

 

1. Do I file my defence (deleting out their failure to respond to my CPR31.14 request) and put the ball back in their court - hoping that the action is stayed pending the agreement?

 

2. Pick up the phone and agree to a written agreement to an extension, say end of August? And advise Court accordingly.

 

3. File the defence and simultaneously apply for strike out?

 

4. Any other considered opinion :o)

Edited July 5, 2011 by ihpj
typos!

[citizenB]

YOu can request an extension of time under CPR15.5.. but YOU as the defendant are required to notifiy the court of the extension.

 

So if you phone the Solicitor for the claimant and they agree to the extension you will need for them to email you their agreement to this and then you will need to speak to the court and ask if you can fax/email the confirmation from the Solicitors and send a hard copy in the post.

 

If they mentioned the agreement in their POCs, then they should have been in possession of it..BEFORE starting court action, not wait until it is asked for by the defendant then whinge they dont have a copy.

 

Any allowance of time should provide sufficient for them to obtain the document THEY intend to rely on in court.. + time for you to prepare a defence once it has been received and reviewed.

 

HTH

 

Other than that.. your defence looks fine.. I agree, you should have requested the dates on teh default notice. However, they wont keep hard copies so they could make any date up..

 

If you never received a Default Notice. you could advise that no DN was received .. but IMHO, you can only defend on what you have.

[ihpj]

** UPDATE / ACTION **

 

As PT once said: Do not be afraid to pick up the phone and speak to there other side., I decided to take that piece of his advice as well and called them. Spoke to the file handler and verbally agreed a 3 month extension in which to file my defence. We talked about CPR15 and the 28 day period, to which I countered that if they locate the document towards the end of 28 days, I would be prejudiced by not having enough time to review it. We then talked about Consent Orders and settled on the 3 month time frame. I was advised that there would be a £45 fee and as it was an order through consent, there should not be a problem with the Court approving it. Morgans would draft it up and forward it to me.

 

Because my defence had to be in by 4PM tomorrow, they agreed to send it via Special Delivery (9AM). I advised them that if it did not arrive then, I would be filing my defence by midday the same day and citing their non-compliance within it.

 

I am now going to have a quick read up on these 'consent orders' and would be grateful for input if this is indeed how we should proceed? I am not worried about the fee as I should be entitled to remission (tier 1) due to my tax credit status.

 

 

** QUESTION **

 

1. Who should be footing the bill for the fee? Them for having to go away and ask for the information or me for requesting time extension?

 

2. If they send me the draft order, does it matter who submits it? I have said that I would want to submit it because I will then have confidence in that it has been submitted and I do not have to worry about filing my defence.

 

3. Is it a case of me popping down to my local Court and handing over the copy of the order (signed and dated by both parties) and seeing that it has been accepted, not then have to worry about filing a defence?

 

4. Once I have filed the draft order, it is likely going to take days for the Court to approve it. I am concerned that they might enter a judgement by default seeing that I have not filed a defence, with the draft order paperwork waiting approval.

 

5. I will of course post up a copy of the order I receive, but is there anything I should be looking for?

 

 

As an aside, I have asked the Claimant's Solciitors to:

 

* fax the County Court Bulk Center confirming what we have agreed

* provide such in writing (or copy of their fax) to me

* confirm that the claim has been put on hold at their end (albeit verbally)

* agreed to 28 day period for filing of my defence from when I receive the requested documents.

 

Although I wait to see what they will actually do, I think (given the circs) I have done as well as could be expected?

 

As ever, help/advice/support/guidance welcome (I hope I have done the right thing)...

Edited July 5, 2011 by ihpj
typos

[ihpj]

ENRON WHERE ARE YOU! :o)

[MARTIN3030]

Are we talking of a Tomlin Order ?

The order is not filed. It is agreed between the parties in advance and then approved by the judge with the parties present.It is important that you agree with the contents,which are normally individually negotiated.You can make changes before you agree and sign.

There is no fee for this.

A Tomlin Order stays a claim on agreed terms that are set out in a schedule to the Order, which remains confidential between the parties and brings the disputes between the parties and the litigation to an end other than for the purpose of enforcement proceedings, if they are required.