?/Hillesden claimform - old LLoyd OD debt

[Andyorch]

Thanks Vint

 

OK lets dissect this :-

 

 

The Claimant's claim is in respect of a credit facility (Current Account Overdraft) provide by Lloyds TSB at the defendants request on Sept 2003. The agreement was subsequently defaulted.(You cant default on overdraft) Failure to meet payments( what payments rather funds being not being deposited) resulted in the account being terminated.(Notice served under sections 76(1) and 98(1) . In May 2011, all legal and beneficial interest for the monies was assigned to Hillesden Securities Ltd.(Did you ever receive this NoA?) The defendant was duly notified in writing of the assignment and that a balance of £1900 was due.(Correct and amount?) The balance remains owning from the defendant.

 

So documents required are a set of statements pref 6 years worth to verify the amount.

A copy of the Notice served under sections 76(1) and 98(1).

A copy of the Notice of Assignment

Annual Arrears Statements

Any requests/communication from Hillesden for payment since they bought the debt.(From May 2011)

 

Regards

 

Andy

[marloes]

Thanks for the replies Andy and vint1954.

 

Requested docs have not arrived

- deadline for submitting defence is Monday.

 

According to the court after I Ackd service they tried to get judgement.

No statements from Hillesdoom.

 

NoA received but unsure if right and correct.

This was with Lloyds until last year but their agents ie a few different DCA's were chasing.

 

The last request I received from Lloyds in 2008 said amount owed was under £1250 but demands from DCA's state approx £2000.

Never received letters stating charges/ interest were being added

- so the amount now includes over £750 of unexplained charges.

[vint1954]

You may need to ask for an extension to file your defence as they have not responded to CPR.

 

Don't think that you can do this online though. It needs to be agreed with the Claimants solicitors.

 

Agreement extending the period for filing a defence

15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

 

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

 

 

 

Andy should be along soon to advise.

 

Vint

[marloes]

Hi. Unsure whether to include in my current thread so please excuse any breach of etiquette.

 

Having followed the advice on the forums

I contacted the claimant to request extension (CPR request ignored)

which they (not solicitors) agreed to in an email.

Sent email to court electronically and also copy by post.

Today spoke to Northampton to confirm the agreement was on their system.

In the course of the call I was old that an agreement does not stop the claimant requesting judgement

 

 

Now excuse my monumental ignorance here but I was under the impression and had assumed that once the court received copy of the agreement that it prevented judgement for the agreed time.

 

 

Also spoke to line manager who said an agreement means nada.

Now I'm slightly panicked...as I only have until Monday to submit defence.

What are the options here??

 

Also,

here are some observations on Northampton's timelines for dealing with defendants correspondence which may help others especially newbies to all this, especially when deadlines are looming.

 

1) It takes upto 5 days to process defendants emails (you get an automated response) and the telephone advisors do not have access to the system containing those emails. How very useless.

 

2) There is a postal backlog so who knows when important nay crucial and time sensitive docs are dealt with. Great...

[marloes]

Hi Vint... just posted a new thread on precisely your advice. Requested extension which was agreed but according to Northampton this does not prevent the claimant entering judgement.

[vint1954]

If the court are aware that the claimant has agreed to an extension, I don't see how they can get SJ.

 

Andy will be able to confirm.

 

Vint

[Andyorch]

Ring their sols up Marloe and request an extension pursuant to CPR 15.5 get their agreement and ask them to either email or fax if you have that facility their conformation in writing.Once you have that email Northampton attach their conformation and then confirm their receipt by telephone, if all acceptable confirm your new defence date.

 

Regards

 

Andy

[marloes]

Hi Andy.

I have an email dated this week agreeing to 28 days extension from the DCA but it does not specify the new date to file my defence.

I sent an email forwarding this to the court on Wednesday and also posted a hard copy to the court.

 

However when I rang the court to see if they had received the agreements they told me that there was a backlog via post and emails are not dealt with for up to 5 days.

 

Also the advisor and a line manager told me that even if I have an agreement that the claimant can still enter judgement against me once the original defence due date (30th April) has passed.

 

I know that advisors are not legally trained but is it correct that the agreement is not binding and that the claimant does not have to honour it ?

[Andyorch]

If both parties have agreed to CPR15.5 and in writing and the Court have acknowledged then i would be very surprised if the claimant pursued default judgment,and even if they did you could just set a side.

 

Regards

 

Andy

[marloes]

What is the position if the court have received the documents (I sent them next day special delivery) but they haven't processed them?

On Friday afternoon they had yet to process email or letters even though they were in the courts possession.

[Ford]

don't worry. they will have a 'note' of something in, even if not 'processed' yet, so can refer to it if required.

the court may prob have been referring to a 'summary judgment' (not 'default' judgment), which can be applied for usually at least after acknowledgment of service, even if there is a def extension. if they apply for summary j then usually would be a hearing.

re extension. i recall in another thread that the court had said that they wanted/needed an agreed specific date (being up to 28 days) rather than just saying '28 days' so as to avoid any ambiguity on the deadline. but, the '28 days' may suffice in your case. them saying something like '28 days from date of letter' might be ok? andyorrch will advise/confirm, give him a shout.

Edited April 29, 2012 by Ford

[marloes]

Thanks for info Ford.

 

I still felt uncertain about relying on the agreement and did a bit of searching online.

I found the following on Osbourne Clarke's ( International Law firm) website which appears to clarify the situation and as such the email from the DCA confirming to the extension agreed in a telephone call is not sufficient in the Courts eyes.

 

I suppose I will now have to submit an embarrassed / holding defence. Ho hum.

 

'Parties to litigation often agree between themselves to extend the time for taking a step in the proceedings. It is a simple point, but the rules require such extensions to be made by the "written agreement of the parties".

 

In Thomas v Home Office [2006] EWCA Civ 1355, the Court of Appeal considered the effect of agreements to extend time for service of a claim form.

 

They considered various methods of agreement and applied rule 2.11 of the Civil Procedure Rules to them.

 

The Court of Appeal has decided this means that such extensions of time must be agreed either in a single document, signed by both parties, or in an exchange of letters.

 

They explicitly stated that it is not sufficient simply for one party to confirm in writing what was agreed in an earlier conversation.'

 

They then considered what was required for a "written agreement of the parties" under r.2.11 and decided that this meant either:

 

• a single document signed by both parties; or

 

• an exchange of letters in which the extension of time is agreed.

 

It did not include:

 

• an oral agreement recorded in writing in the respective solicitors' files; or

 

• a letter by only one party to the other confirming an oral agreement.

 

Practice points

 

Claimants asking for extensions of time for service of a claim form should make sure they have an exchange of letters or e-mails which show a clear agreement on the extension.

 

Best practice, as Jacob LJ added in his judgment, is that parties should agree the extension ends on a particular date, rather than agree an extension of a number of days.

 

This case related to service of a claim form.

The same principles also apply to most other steps in litigation

- but with less immediate and serious consequences.

 

Now checked yesterdays post and letter confirming agreement from DCA has arrived.

Does it matter that I have no copy of a letter from myself requesting an extension.

Confusion

[citizenB]

Now checked yesterdays post and letter confirming agreement from DCA has arrived. Does it matter that I have no copy of a letter from myself requesting an extension. Confusion

 

 

All that is required is a copy from the claimant agreeing to the extension and the new date.

 

You need to get a copy of that off to the court as soon as you can. Phone them first, ask if you can email a copy and send a hard copy in the post.

[marloes]

Hi again.

 

The deadline of the 28 day extension is v near i.e Monday. I have received no documents under CPR. Can anyone advise me now on how/ what my defence should consist of?

 

P.s I have now received a notice of sum of arrears letter from Hillesden re a different debt, this is for an old egg credit card.

 

The default has long since been removed from my credit file.

Is it etiquette to start a differing thread?

 

Thanks.

[Andyorch]

Hi Marloes responding to your PM

 

We can only submit a short holding defence in the absence of documentation.I will post something suitable for you tomorrow to edit and approve for submission before Monday.

 

Regards

 

Andy

[marloes]

Andy, thank-you for helping. Appreciated.

[Andyorch]

o I, ********** of ************** make this statement as my defence to the claim brought by **************

 

o The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

o No documents supporting the claims in the particulars have been offered and despite a request to the claimant for further information none has been forth coming and as a result I cannot plead in defence to the claim

 

o Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit.

 

o Further to that above, the defendant is unable to plead effectively or at all.

[marloes]

Thanks for that Andy.

I will amend to suit and post up defence for comments/ suggestion.

 

Can anyone tell me if I need to enter the following at the top of my defence.

It is being filed online through MCOL.

Thanks

 

In the xxxxx court.

Claim number.

Hillesden Securities ltd v xxxxx xxxxxxx

[Andyorch]

No

[hmmh1978]

CPR lesson 101:

 

Holding defences are bad and should never be used.

 

They do not comply with CPR part 16 and a defence such as the above leaves the defendant open to a strike out application under r. 3.4 or even r 3.2 and 3.3.

 

I believe the information you have is enough for you to plead.

 

Do you deny ever having an account? No.

Do you deny ever receiving the NoA? No.

 

So you do know about the account. You are also aware that you owe them money and that the debt has been assigned.

 

The only think you are not sure of is the quantum or the amount of the debt, so you could:

 

1.) either part admit to the amount you know you owe them which will result in a CCJ and let them try and justify the rest; or

2.) either admit to everything which will result in a CCJ; or

3.) deny ever owing any money in the hope that something will come up;

 

Also, if you are hoping to later amend the defence, that will leave you open to costs on the claimant's side as IMHO, you have everything in the PoC to help you plead.

 

Just showing the technical side of the CPR and what the claimant might do if faced with such as defence.

 

Just FYI, if you wanted more time and you couldn't get the agreement from the claimant, you could have filed an application with a hearing for an extension.

 

Good luck.

[Andyorch]

Already had CPR 15.5 hmmh and this is an Overdraft so there is nothing for the Claimant to disclose or rely on.

 

Andy

[hmmh1978]

I think this is another case of misinterpretation regarding what I wrote. I am saying if he couldn't get the agreement from the claimant with regards to the extension, NOT the actual application for an account. Agreement means approval in this case. I do see how that could have thrown you off however I am clarifying that point now. Anyway, back to the point of my post.

 

Why are we using a holding defence in line with what I said above? What seems to be missed is the fact that the defendant has enough to plead on. Anything less is a porky especially when signed with a statement of truth.

[Andyorch]

Not a misinterpretation at all hmmh I was simply replying to your statement of :-

 

 

" Just FYI, if you wanted more time and you couldn't get the agreement from the claimant, you could have filed an application with a hearing for an extension." Already done now on 56 days with no response from the Claimant.

 

The P.o.C

 

The Claimant's claim is in respect of a credit facility (Overdraft) provide by Lloyds TSB at the defendants request on Sept 2003. The agreement was subsequently defaulted.(Not technically true you cant default on an overdraft rather closed account recalled) Failure to meet payments resulted in the account being terminated.(What payments rather no deposits probably due to excessive penalty charges) In May 2011, all legal and beneficial interest for the monies was assigned to Hillesden Securities Ltd. The defendant was duly notified in writing of the assignment and that a balance of £1900 was due. The balance remains owning from the defendant. (Valid Notice of Assignment?)

 

 

I have advised marloe to approve and edit the above should he wish to use it rather than just not submit a defence at all.

 

Content of defence

 

CPR16.5

(1) In his defence, the defendant must state –

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and

© which allegations he admits.

(2) Where the defendant denies an allegation –

(a) he must state his reasons for doing so; and

(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.

(3) A defendant who –

(a) fails to deal with an allegation; but

(b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,

shall be taken to require that allegation to be proved.

(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.

(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.

(6) If the defendant disputes the claimant’s statement of value under rule 16.3 he must –

(a) state why he disputes it; and

(b) if he is able, give his own statement of the value of the claim.

(7) If the defendant is defending in a representative capacity, he must state what that capacity is.

(8) If the defendant has not filed an acknowledgment of service under Part 10, the defendant must give an address for service.

(Part 22 requires a defence to be verified by a statement of truth)

 

 

Regards

 

Andy

[marloes]

Thanks for advice.

Do you deny ever having an account? No.Do you deny ever receiving the NoA? No.

 

I intend to reply on the basis of CPR 16.5 as Andy has stated above that I'm unable to admit or deny, and requires the claimant to prove all they allege. It is up to the claimant to prove their case and I'm definitely not going to help them out. I don't regard this as a 'porky'.

 

The claimants provided no docs in support of the POC, they supplied none in response to a CPR 31.14/15 request and none within the agreed 28 day extension which ends tomorrow.

 

I cannot admit to part of their claim as I have received no statements of accounts for years and years so have no idea what this total balance relates to. I'm sure there are at least £700 of charges etc but have no breakdown.

[hmmh1978]

Already done now on 56 days with no response from the Claimant.

 

Ok, I was under the impression that he didn't get the extension which is why I put it down as a FYI for next time.

 

The point still stands as to the defence:

 

 

The P.o.C

 

The Claimant's claim is in respect of a credit facility (Overdraft) provide by Lloyds TSB at the defendants request on Sept 2003. The agreement was subsequently defaulted.(Not technically true you cant default on an overdraft rather closed account recalled)

 

You are arguing over semantics. It is quite clear what is meant and technically speaking, an overdraft can be defaulted on if a request for payment is made and none is provided. Exactly the same way if a request for immediate payment of a loan is made due to a breach or with notice and payment is not made, a "default" occurs.

 

Failure to meet payments resulted in the account being terminated.(What payments rather no deposits probably due to excessive penalty charges)

 

This is conjecture on your part but again it is quite plain what is meant. They recalled the over draft and maybe asked the OP to either pay it all off in full or via instalments (unlikely but not unheard of if asked). The end point is that this current account was terminated due to lack of deposits. Having penalty charges does not mean that there should be no deposits. Having penalty charges on an account does not extinguish a debt as the original debt was not paid off anyway.

 

In May 2011, all legal and beneficial interest for the monies was assigned to Hillesden Securities Ltd. The defendant was duly notified in writing of the assignment and that a balance of £1900 was due. The balance remains owning from the defendant. (Valid Notice of Assignment?)

 

Do you know if the assignment received is compliant with s 82A of CCA 1974 which repeats the requirements of the LoPA 1925? Even if it wasn't, what are the sanctions for non-compliance? Would they just make the assignment equitable? These are all rhetorical questions.

 

Thanks for para-phrasing 16.5 and I hope the OP will take note of what their defence should contain as a holding defence is not a defence at all.

 

Something along the lines of the first point is admitted, second point is admitted, third point is denied, blah blah blah. That is the format of a defence however be careful of perjury as I see no defence based on what is said to the liability incurred, the only question is how much does the defendant owe.

 

Putting in a holding defence has the following disadvantages:

 

1.) Strike out by the court or by the claimant as not compliant with CPR;

2.) Perjuring one self;

3.) Potential to incur costs as the defence will need to be amended at some point as the case cannot go ahead without the defence being amended;

 

Food for thought.