Filing a defence - PDL Court Papers Received

[Prime99]

Hi,

 

I wonder if anybody could clarify a point for me.

 

I received a claim form from the Northampton County Court in respect of an unpaid payday loan. The issue date was 5th March and I filed an acknowledgment of service on 15th March and need to clarify the date by which I have to submit my defence.

 

Is it 14 days from when I filed the AOS e.g today, or Date of Issue +5 for service +14 for AOS + 14 for defence = 7th April?

 

Many thanks in advance for your help.

 

P99.

[asokn]

Time runs from the date of service. That is to ensure certainty and prevent people playing the system by waiting until the final day to acknowledge service.

[AndyOrch]

But you can acknowledge at any time after 5 + up until 14 days, don't leave it till the death in case the system goes down (MCOL) but don't rush either, you will need time to evaluate your decision, request CPRs and CCAs and consider your plea.

 

Regards

 

Andy

[Prime99]

Many thanks for you replies.

 

I have already acknowledged service (15/3), was just double checking on the rules for filing the defence. CPR 15.4 was the rule I should have looked for before posting!

Edited March 30, 2012 by Prime99
Correct spelling mistake.

[Prime99]

Hi,

 

I received a court claim from Northampton (CCBC) for a payday lender (I don't want to name them just yet in case they are reading!).

 

The claim was for the original amount borrowed plus 1 months interest, plus some charges. I intended to pay this before my defence was needed, however things haven't gone to plan financially and now I can't pay so am needing to submit an urgent defence (due 7th April but I am guessing will need to be done today due to the bank holiday)

 

I am in the process of setting up a DMP with CCCS but am having problems obtaining some creditor details which CCCS need in order to finalise the plan.I had communicated this to this PDL and they insisted that I make a token payment to them, which I had agreed to do early the following week, but then received the claim form, so I didn't make the token payment.

 

The particulars of claim are:

 

"Mr Prime99 signed a legally binding pay day loan contract on xx September 2011, agreeing to pay back the loan on xx October 2011. However, Mr Prime99 defaulted on this agreementn and the loan remains unpaid.

 

A statuary notice of default was issued and sent to Mr Prime99 on xx November 2011.

 

Mr Prime99 has made no payment since the issue of the statuary notice of default and we therefore seek the Courts assistance in order to recover the monies owed by Mr Prime99"

 

I would be eternally grateful if somebody would be able to guide me in the right direction.

 

Thanks

P99

[ims21]

Two threads merged on the same issue...please stick to one thread for this.

 

Have moved to Legal Issues

[renegadeimp]

Sounds like the PDL is ignoring the fact that you are setting up a DMP in order to pay off the debts. Use this as part of your defense. before we help you build a defense, we're going to need a lot of info, such as the loan amount, initial interest, when it was taken out, when it defaulted, how much of the loan is made up of charges, what those charges consisted of etc.

[Prime99]

Thanks for you quick reply renegadeimp.

 

The initial loan amount was £100. The interest was £24. It was taken out on 30th September and was due to be repaid on 24th October. There are £55 of extra charges on the claim (total 179 + 25 court fee = 204), I'm not sure what these are for as I can't seem to find my agreement/T&C's. I have got a copy of the default notice which is dated 16th November and gives me until 30th November to remedy the breach (repay £179).

 

My last email correspondence with the PDL had me agreeing to make a token payment on 12th March, and an email from the PDL stating "Thank you for your email, the contents have been duly noted. Please be advised we will hold your account for three days from 12th March in order time to receive your payment into our bank." Obviously with the date of issue of my claim being 5th March this was rubbish.

[renegadeimp]

Get all the info you can and submit it as a defense against their claim. Also state that they have been adding on charges for unknown reasons. If you have evidence to support that you have contacted them but they have refused time and time again to come to an arrangement, which is a direct breach of OFT regulations, then make sure you have it when you go to court.

 

One thing i have to ask. Has this debt been to a DCA or solicitors in order to try and get the debt rectified, or did they pass it straight to the courts? If its the latter, then make sure you have told the court this. They cannot use the courts as a first line of debt collection because the debt and indeed pretty much all PDL loans are not regulated, therefore they have no legal right to use the courts to reclaim the debt until the debt has been passed to various other ways. Dont believe their spiel about it is regulated. Only loans that have initial contracted terms of over 4 months and are over a certain value are regulated. PDL's arent covered because of their intended purpose. They are payday loans. Usually 5 days to 3 months max. Normally 30 days.

 

If they did use the courts as a first line of debt collection for an unregulated debt, then it breaches OFT and FOS regulation and you NEED to tell the courts this, as some judges seem to be a little oblivious.

 

PDL's exist in the unregulated zone due to them being low value and under the 4 month limit. Make sure you list this in your defense or state it at court, because not all judges know about it.

 

You might get lucky and their representatives wont even turn up, or on the last day of submission they will try and file a motion saying they havent recieved all necessary paperwork. If you get the latter, FORCE them into court. Theyve had more than enough time to gather documentation.

 

One things for sure though, when you appear in court, you need to be firm and confident in what you say, as they will try and call your bluff, or make comments to various laws which they are not governed by, hoping you and the judge fall for it.

 

Get the defense in fast though, as most times, when you file the defense, the PDL will get a copy and try and settle out of court.

 

 

Also, have you complained to the OFT and FOS. If no, why not? Doing this will also help your court case, as you can say the OFT and FOS are currently investigating your case, and as such it should not have gone to court for that reason and the initial reason i listed.

Edited April 5, 2012 by renegadeimp

[asokn]

A few points arising from renegadeimp's post above:

 

The fact that the claimant has refused to accept negotiated payments is not a defence, indeed the fact that these negotiations have occurred is evidence of compliance with the spirit of the pre-action protocol and that the debt is admitted.

 

Also, the fact that the debt is not regulated by the CCA does not mean that the claimant needs to pass the debt to a third party or that it is not entitled to issue proceedings. Furthermore the fact that it is not regulated is no defence.

[Prime99]

Thank again renegadeimp.

 

All contact I have is from the PDL, no solicitors (unless you count litigation manager) or DCA's.

 

I am submitting the defence today and am also submitting complaints to OFT and FOS.

 

I am struggling with the wording for the defence though, I am not sure quite how to put across to the judge that what they are doing is wrong, and that they don't need to be going to court to get the money..

 

Any help from anybody would be much appreciated.

[renegadeimp]

It doesnt mean that theyre not entitled to issue proceedings, that is correct. However it does mean that they are not allowed to use the courts as a first line of debt collection on an unregulated loan. Thats what those pseudo loan sharks, the DCA's are for. This alone is a breach of regulation and technically could easily get it thrown out of court if you word it correctly to a judge. There are a few cases of this happening to certain PDL's.

 

Thats why a lot of PDL directors now try and set up their own DCA's so they can say that they have passed it on to get the debt resolved but to no avail. Hence the impending court proceedings.

[asokn]

OK, I disagree entirely but we can agree to disagree

[renegadeimp]

Thank again renegadeimp.

 

All contact I have is from the PDL, no solicitors (unless you count litigation manager) or DCA's.

 

I am submitting the defence today and am also submitting complaints to OFT and FOS.

 

I am struggling with the wording for the defence though, I am not sure quite how to put across to the judge that what they are doing is wrong, and that they don't need to be going to court to get the money..

 

Any help from anybody would be much appreciated.

 

 

You can put the defense in normal english for now. Unless you are apt at writing in legalise. You need enough info to cover the basics of your defense, and when you get to court you can expand on it by however much you actually need.

 

Before you do, give the national debtline a call. They have some really good people there that could help you in that regard.

[renegadeimp]

OK, I disagree entirely but we can agree to disagree

 

Thats ok. Im just saying that from my experience with a multitude of loans, both from people on here, and my own loans years ago, they are not allowed to use the courts as a first line method. Of course, it may have changed in this time, but i havent been able to find any evidence to back that up, hence my statement. If what i wrote still stands ( and i think it does) then it cant go to court, because if it was able to and a judge found in their favour , then there would be no point having that regulation existing and would open the floodgates to other PDL's to do the exact same thing.

 

The regulation and official goverment business information on retrieving debt basically says that taking legal action to reclaim a debt should be a last resort, and often the threat of doing so is enough to make the customers pay. However, if their usual inhouse ways of recovering debt have failed, there are things to consider before beginning the legal process.

 

The court will expect the Claimant to make an effort to sort out and exhaust all other options in regards to the dispute with the other party before they take legal action. This means that court action only takes place after they have tried and exhausted all other options to reach an agreement with the customer.

Ways to reach an agreement are considered to be Mediation, Negotiation, Arbitration, Conciliation, ENE (Early Neutral Evaluation), as well as the use of specialist Solicitors or Debt Collection/Enforcement Agencies.

 

From the information we have been given, the PDL hasnt utilised nor considered these and is instead trying the U.S method of retrieval where they automatically send the debt to a court( because the US pretty much has have one regulation to cover all) . However, many PDL's do not realise that they are not regulated in this manner and cannot use the courts like this. Check the PDL forums, there is a lot of evidence of PDL's trying to take people to court like this only to they get proven wrong, and try their hardest to settle out of court before it reached a judge.

Edited April 5, 2012 by renegadeimp

[citizenB]

Thanks for you quick reply renegadeimp.

 

The initial loan amount was £100. The interest was £24. It was taken out on 30th September and was due to be repaid on 24th October. There are £55 of extra charges on the claim (total 179 + 25 court fee = 204), I'm not sure what these are for as I can't seem to find my agreement/T&C's. I have got a copy of the default notice which is dated 16th November and gives me until 30th November to remedy the breach (repay £179).

 

My last email correspondence with the PDL had me agreeing to make a token payment on 12th March, and an email from the PDL stating "Thank you for your email, the contents have been duly noted. Please be advised we will hold your account for three days from 12th March in order time to receive your payment into our bank." Obviously with the date of issue of my claim being 5th March this was rubbish.

 

 

Ok, well the DN is invalid as it has not given you 14 days to remedy. There has been no allowance for posting which should be (2 working days - 1st class / 4 working days - 2nd class)

 

Harrison v Link is the authority on that.

 

When was the Claim issued ?

 

You have a strict time table to adhere to.

 

Date of issue + 5 days for service + 14 days to acknowledge + 14 days to enter a defence if you are going to defend the claim.

 

If you are not going to defend then you simply need to complete the admittance section and complete the I&E part of the claim.

[citizenB]

If you are going to defend then you would simply need to say that you had kept the PDL company upated with regards to your financial situation and that you were in the process of setting up a DMP. You can have the DMP company confirm this for you.

 

That the PDL, by issuing the claim are attempting to prioritise their debt over your other creditors who look set to accepting the reduced payments. That the PDL are using the court as a first line debt collection tool rather than a last resort. That you havent even attempted to avoid payment, you have simply asked for time to repay.