Australian Debt being chased in the UK court papers received

[leelang229]

Hello All,

 

sorry to hijack this thread, but I am in a similar position to Bobster, only things have moved on.

I also had a debt assigned to Creditcorp (AUS$31k), who managed to trace me back to the UK through my work. I ignored them as much as possible, but since then I have had Stevensdrake write to me. I sent back a standard letter denying knowledge of the debt.

Today I received a claim form from Brighton County Court, the claimant being Credit Corp in Sydney.

 

I guess my question is what to do next? Do I dispute the claim (now in Sterling), and on what basis? My thoughts are that the claim is invalid, as it is a debt assigned in Australia, and I should write to state this.

 

Any help apreciated, as this is getting very worring now.

 

Cheers, Lee

[cerberusalert]

As I understand it unless they've already obtained a judgement in Oz they are trying to use the wrong jurisdiction. Have a read of The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994

[42man]

I still think you should address the claim form and order disclosure under the civil procedure rules...this does depend on the particulars of the claim (can you post these up ? minus the exact amounts, dates etc) And please do read these - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html - My initial feeling is that they haven't got a hope of enforcing this under UK law (however that doesn't mean you have to sit back and do nothing...)

[leelang229]

Thanks 42 Man and Cerberusalert.

 

"The particulars of claim are:

 

1. The Claimant is Assignee of the Debt fom Commonwealth Bank of Australia (the Assignor). The claim is for the balance of payments undr an Agreement ade between the Assignor and te Defendant etered into out of the jurisdction and therefore not regulated by te Consumer Credit Act 1974.

 

2. The agreement rovided for;-

a) payment each month of stipulated monthly payments

b) in default thereof the Claimant may terminate the Agreement and recover te full balance due under the Agreement

 

3. In breach of the said agreement the Defendant failed to make payment and the Agreement was terminated by the Assignor.

 

4. On XX XXXber 2XXX the balance due and payable by the Defendant was AUS$XXXXXXX

 

5. The Defendant has paid AUS$0

 

The Claimant therefore claims;

1 AUS$XXXXXX

2 Contractual interest accrued to date hereof: AUS$XXXX

3 Further contractual interest at the rate of 1.49% per month from the date hereof until judgement or sooner payment or as the court deems fit.

4 Costs to be assessed

Caimants caim AUS$XXXXXX

 

*WE HEREBY CERTIFY that the rate current in London for the purchase of AUS$ at close of business on XX XXXX 2XXX was AUS$1.65168 to the £1 sterling and at this rate the amount due under the claims to date amounts to £XXXXX and the claim total to £XXXXX"

 

I would guess that I now need to get a solicitor to defend the claim, or is this easy enough to do myself?

I also should check whether there had been a judgement in Australia; does anyone know the best way of doing that?

 

Thanks all for your help.

Lee

[cerberusalert]

You can check your credit file through VEDA My Credit File which will show whether there's a judgement against you in OZ.

 

"The particulars of claim are:

 

1. The Claimant is Assignee of the Debt fom Commonwealth Bank of Australia (the Assignor). The claim is for the balance of payments undr an Agreement ade between the Assignor and te Defendant etered into out of the jurisdction and therefore not regulated by te Consumer Credit Act 1974.

I find this strange, in their POC they admit that the alleged debt was entered into out of the jurisdiction of the UK courts and it's not covered by CCA 1974.

[cerberusalert]

I've started a new thread for you so as not to confuse the other one

[cerberusalert]

See; https://www.moneyclaim.gov.uk/csmco2/popup_help.jsp?topic=AOSnotes

 

You can tell the Court that you intend to defend a claim by filing an Acknowledgment of Service within 14 days of the date you received the response pack (the date of service). You can file an Acknowledgment of Service using this online service, by answering the questions presented in the electronic forms that follow.

 

You should complete this form if you need 28 days (rather than 14) from the date of service. The extra time will allow you to seek legal advice from a solicitor, legal advisor, or Advice Agency who may help you prepare your defence.

 

You can also use this form to tell the court that you intend to contest the court's jurisdiction if you believe that the court does not have legal authority to hear the claim that has been made against you.

[cerberusalert]

Send this to the claimant;

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. 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 or 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 general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

Print name do not sign

[leelang229]

Hello Cerberusalert,

 

Thanks so much for all your advice. I have jut got my D+B Credit report from Australia. There are 2 defaults, but no judgements, no summons and no bankruptcy acts. My guess is that Credit Corp should (should have) pursued these options before trying in the UK, but can't due to me no longer being resident.

I will be responding to the courts as you suggest, and have been reading all the links you have posted. Thanks again, will keep you updated.

Cheers, Lee

[cerberusalert]

Send the CPR 31.14 Request to the claimant & get them to reveal their vitals.

[leelang229]

Hello Cerberusalert,

 

I am sending today the N9 Acknowedgement of Service, with intention to defend all of the claim, and also intention to contest jusrisdiction. I am also sending the CPR31 letter to Stevensdrake.

 

Let me know if that's the right thing. I wasn't able to use the moneyclaim website, so will I need to write to the court to contest jurisdiction? I guess that's all I need to do for now. Thanks for your help, will be donating later.

 

Cheers, Lee

[cerberusalert]

Try the site again on Tues, if it still isn't working post the documents to the court recorded delivery + the CPR 31.14 Request to Stevensdrake.

[leelang229]

I can't use the site as the claim was not issued electronically; back to snail mail for me!

[leelang229]

Hello All,

 

I have received papers today from SD, acting on behalf of Creditcorp. I can't scan in so here is the text of the letter:

 

Dear Sir,

 

RE xxxxxxxxxxx

 

Thanks for your letter of 5/4/10.

 

We enclose:-

1. Copy of your online application (already supplied)

2. Terms and conditions

 

Together these constitute your Agreement.

 

You requested a copy of the Assignment but with respect that is a document which is confidential to our client and the Assignor. You are not entitled to a copy of the same. You are entitled to a copy of the Notice of Assignment.

 

You also requested copies of a Default Notice and Termination Notice. There are no requirements for such documents under N.S.W. law and none exist.

 

We therefore enclosed also:-

3. Notice of assignment dated 13th March 2007

4. s80 Notice dated 12th March 2009.

 

Under the circumstancs we have complied with the requirements under the CPR and no extension time for service of a Defence will be necessary.

 

Yours faithfully,

 

SD

 

Enclosed are photocopies of an online application form for a credit card (not signed, obviously), and photocopies of the standard "Important information about Credit Cards" leaflet (61 pages), also marked "conditions of use".

 

There is a copy of a letter sent to my previous address in Australia, from Creditcorp with a Notice of Assignment of Debt.

 

There is also a copy of a letter addressed to my current address (but which I have not seen before), entitled "Section 80, Notice of Intention to Commence Legal Proceedings"

 

I would like to know what your opinion of this is, and what my next steps should be. Do you know of any good solicitors in West Yorks that I should be speaking to?

 

Thanks as always,

 

Lee

[cerberusalert]

What year did you sign the online agreement and is there a 'tick box' which has been ticked on the agreement?

[cerberusalert]

You also requested copies of a Default Notice and Termination Notice. There are no requirements for such documents under N.S.W. law and none exist.

Well at least they admit that it is covered by NSW law and not UK law.

 

I still believe that you can challenge the jurisdiction of the court here, but you should consider seeking advice from CAB and check if there is a local Law Centre in your area which gives free legal advice. Law Centres

[leelang229]

What year did you sign the online agreement and is there a 'tick box' which has been ticked on the agreement?

 

The agreement was in 3rd Feb 2004.

On the "Declaration" part of the form there is a box for "signature of applicant" which has a little "x". I also put an "X" in the box not to receive marketng information.

Edited April 12, 2010 by leelang229

[Mozz1]

What's the latest on this? Anything to report? Did they obtain UK judgement for the Aussie debt?

[leelang229]

Hello Mozzi,

 

I am going to see a solicitor tomorrow to get a (paid for) opinion, and hopefully get the case dropped due to the County Court not having jurisdiction.

 

I'll keep you all in the loop; I'm sure I'm not the only one in this position, and I'm pretty sure I'm not the first!

 

Cheers, Lee

[leelang229]

I saw a solicitor on Friday, who said I had a few options:

 

I could defend on a couple of areas: 1. the notice of assignment was not served corectly, as it was sent to my last address in Oz. Would be hard to defend as it ws my responsibility to tell the bank I had moved.

2. Jurisdiction. Double edged sword, as they could then sue in Oz, and get the judgement transferred to the UK.

3. Original agrement was never provided, but in theory this could be obtained from the bank.

 

In the opinion of the solicitor, even though the debt is not covered by the CCA, they can still pursue the debt in the UK.

 

I have a question for any menbers that might know; if I now make an offer to repay, now that papers have been served, would they/could they drop the case so that a judgement is not made? Is this likely, or even possible?

 

I need to call my solicitor on Monday to let him know how I wish to proceed; clearly I don't want a judgement against me, as I am a homeowner, and will need to remortgage in the next couple of years. How long would a CCJ affect my credit for?

 

Cheers, Lee

[cerberusalert]

I have a question for any menbers that might know; if I now make an offer to repay, now that papers have been served, would they/could they drop the case so that a judgement is not made? Is this likely, or even possible?

Yes you could, a lot would depend on how strong they think their case is and the likelihood that they'd win.

How long would a CCJ affect my credit for?

A CCJ would stay on your credit file for six years from judgement.

[Mozz1]

Point 2, yeah, six bucks and my right nut says we're not landing in Chicago. I found out the same thing from solicitors ref my NZ debt and its apparently quite easy to get the dent registered here in the UK.

 

If it helps, I emailed the BNZ and gave them an ultimatum and it worked! They accepted a crazy repayment offer and even cancelled out the (punitive) interest for a while. I can share my email to them with you if you want?

 

Mozzi

[Dazza_2010]

I am not a lawyer. But I believe your solicitor gave you some misleading advice.

 

While the letter of what he said is true, my understanding is that you have to be resident in Australia for a judgement to be made against you. I also believe the same applies in the UK.

 

So if you managed to win in the UK, you could then send a registered letter to the debt collector stating that you are not resident in Australia and refute the debt.

 

With some luck that might progress your problem to the 'too hard basket'.

[ukaviator]

If you have worked in Australia as a temporary resident you may be eligible to claim your superannuation money. This payment is called the Departing Australia Superannuation Payment (DASP), have you claimed it?

[WA_Newman]

Lealang,

 

Your solicitor was right on one point: the Notice of Assignment.

 

I understand that Creditcorp are the one's suing you. Creditcorp can only take action in their own name if they have an Absolute Assignment.

 

However, for an assignment to be absolute there is a number of things that have to done. If the date of the assignment is stated on the Notice of Assignment, it must be correct. The amount owed on the Notice of Assignment must be correct. And the Notice must be received by the debtor (merely sending it to a previous address is not sufficient as the claimant must prove you have received it). The Notice of Assignment is effective from the date you receive it providing all other conditions are met.

 

If there are errors in the Notice of Assignment, the assignment becomes an equitable assignment. The major difference between absolute and equitable assignment is that with an absolute assignment the assignee can take action in the courts in his own name. With an equitable assignment the assignor must join the assignee as co-plaintif.

 

This will slow down the process as Creditcorp will have to go back to the assignor to have him join in a new action.