Marlin Europe v Miss Understood 01

[Miss understood 01]

Hi Everyone,

I am in the process of starting a defence to a County Court Claim as follows:
Issue Date: 18-08-2015
Original Creditor: First Direct - HSBC
Claimant: Marlin
Claimants Solicitor: Restons
Amount: £13,000

Particulars of Claim:

The Claimant claims payment of the overdue balance due from the defendant under a contract between the defendants and HSBC Bank Plc.
Dated on or about April 1996 and assigned to the claimant on March 28 2014.
Particulars a/c no xxxxxx

Debt: Credit Card
Actions: Acknowledged the Claim.
Sent a CPR 31.14
I don't believe it is Statue Barred.
Other Info:
The debt that is being persuing is from a credit card.
However, they have used my current account number and sort code on the particulars of claim. My current account had charges applied and a balance of
-£103.00 before it was closed, (this amount is shown on the last statement).

My CPR 31.14 request was replied to on 09 Sept 15 and stated amongst other things that "the particulars of the claim contains - sufficient information in order to understand what the claim relates to" - and - "they see no reason why I now require an additional copy as one would have been issued when the account was opened".
I am looking to file a defence that the contract referred to within the particulars of the claim has not been produced and the account number given does not correspond to my Credit Card debt but my current account. No statements have ever been sent to show how -£103.00 became -£13,000. It also differs from the account number on the Credit Card default notice served in 2009.
I know this is just my layperson defence and won't be the end of it and would appreciate any useful advice.
Thanks for your help!

[FlamingParrot]

Re: Marlin Europe v Miss Understood 01

Hi Everyone,

I am in the process of starting a defence to a County Court Claim as follows:
Issue Date: 18-08-2015
Original Creditor: First Direct - HSBC
Claimant: Marlin
Claimants Solicitor: Restons
Amount: £13,000

Particulars of Claim:

The Claimant claims payment of the overdue balance due from the defendant under a contract between the defendants and HSBC Bank Plc.
Dated on or about April 1996 and assigned to the claimant on March 28 2014.
Particulars a/c no xxxxxx

Debt: Credit Card
Actions: Acknowledged the Claim.
Sent a CPR 31.14
I don't believe it is Statue Barred.
Other Info:
The debt that is being persuing is from a credit card.
However, they have used my current account number and sort code on the particulars of claim. My current account had charges applied and a balance of
-£103.00 before it was closed, (this amount is shown on the last statement).

My CPR 31.14 request was replied to on 09 Sept 15 and stated amongst other things that "the particulars of the claim contains - sufficient information in order to understand what the claim relates to" - and - "they see no reason why I now require an additional copy as one would have been issued when the account was opened".
I am looking to file a defence that the contract referred to within the particulars of the claim has not been produced and the account number given does not correspond to my Credit Card debt but my current account. No statements have ever been sent to show how -£103.00 became -£13,000. It also differs from the account number on the Credit Card default notice served in 2009.
I know this is just my layperson defence and won't be the end of it and would appreciate any useful advice.
Thanks for your help!

£13,000 does sound like a lot for the average current account overdraft. The question is, did you have a credit card with HSBC where the balance would be in that region? The particulars do suggest they are claiming for a current account because they refer to a 'contract' instead of an agreement regulated by the Consumer Credit Act. I recall seeing claims where HSBC had bundled together a current account overdraft and a loan.

The reply from Restons is a standard template, however, I would consider telling them that, in view of the fact they've not been able to supply you with any documents to file your defence, would they be so kind as to agree to a 28 day extension as allowed under CPR 15.5. If they agree, you have to notify the court in writing (email is fine). :typing: That should give you a bit more time to look into this.

Also as this claim is above £10,000 it won't be allocated to the small claims track where Part 31 of the CPR does not apply, that means you could apply for an unless order to enforce your request under CPR 31.14. :thumb:

[Miss understood 01]

Re: Marlin Europe v Miss Understood 01

Hi Flaming Parrot, Thanks for your reply and help. You are quite right that they appear to be bundling my credit card under the 'contract' and account number of my current account. I have acknowledge the claim, however, my 28 days will expire and I shall be out of time to file my defence on 20th of this month, also coupled with the fact I may not receive a timely reply by that stage / may be refused. What would be my best line of defence going forward, enforce my CPR 31.14 request? I know you must have answered this a thousand times before, so thanks again!

[FlamingParrot]

Re: Marlin Europe v Miss Understood 01

Hi Flaming Parrot, Thanks for your reply and help. You are quite right that they appear to be bundling my credit card under the 'contract' and account number of my current account. I have acknowledge the claim, however, my 28 days will expire and I shall be out of time to file my defence on 20th of this month, also coupled with the fact I may not receive a timely reply by that stage / may be refused. What would be my best line of defence going forward, enforce my CPR 31.14 request? I know you must have answered this a thousand times before, so thanks again!

As I said previously, I'd suggest asking them to agree to a 28 day extension. Your original deadline is 33 days from the date printed on the claim form, if they agree, you'd get 28 days on top of that.

The majority of defendants on here don't get any documents before the deadline expires and end up submitting a generic defence based around not having received any documents. The other option is to enforce the CPR request with an unless order, basically to make the court order them to supply the documents or else the claim is struck out. With claims below £10,000 this route is no longer an option once a defence is filed because the case is allocated to small claims where part 31 of the CPR does not apply, however in your case it would still be an option. I'd try getting the 28 day extension first. :thumb:

[Miss understood 01]

Re: Marlin Europe v Miss Understood 01

Advice heeded, I'll post an update by the weekend. -Thanks Again.

[Miss understood 01]

Re: Marlin Europe v Miss Understood 01

Hi Flaming Parrot,,
No update from Restons as to them agreeing a 28 Day extension period. I shall be out of time so need to file my defence today. In summary, I shall state that they failed to supply any documents / contract in as far as my CPR 31.14 request.
Also that the balance under the "contract number" they have stated in their particulars of claim is -£103.00 as per the last statement received in 2009 and not the £13,000 they are claiming. They have also failed to supply any particulars (statements) to show how this amount has increase from £103.00 to £13,000.
I would need to admit part of the claim (£103.00) or admit nothing until they can provide a "contract"?
Is there anything I have missed that should be included?
Also, how long after submitting a defence should I wait before considering if I should enforce the CPR request with an unless order?
Thanks again.

[Miss understood 01]

Re: Marlin Europe v Miss Understood 01

Is there a draft to reply to a defence when a claimant has failed to supply any statements or documents to establish contract details claimed ?

[nemesis45]

Re: Marlin Europe v Miss Understood 01

Is there a draft to reply to a defence when a claimant has failed to supply any statements or documents to establish contract details claimed ?

Yes in the forum library but it's best really to just look at the headings and format to suit your case.
Have a look at the many threads with similarities to yours and make a draft and post here we will be
happy to go through it with you.

nem

[Miss understood 01]

Re: Marlin Europe v Miss Understood 01

Thanks Nemesis 45, been looking and yes, there are quite a few threads!!

Here is my draft.

I file a defence to this claim due to the following:

1) Following my CPR 31.14 request on 03 September 2015. The*
claimant has failed to supply the requested documentation of a*
"contract" mentioned in their Particulars of claim. They have*
received and acknowledged this request but failed to supply any*
documentation.

2) The overdue balance of £13,123.66 is stated to be under the*
contract mentioned by the claimant. This given as "Particulars*
"XXXXXXXX" and is incorrect. As per my last statement of a*
current account on 05 March 2009, the balance relating to this account number was -£103.01 over*drawn, on the date that the account was closed.

3) The claimant has failed to supply me with any particulars (bank*
statements, etc) to show how this amount has increased from*
£103.01 to the £13,123.66 now being claimed.

I therefore, request for this case to be dismissed due to the*
above and the claimant failing to fulfil thier obligations in
providing details under my CRR 31:14 request.

[nemesis45]

Re: Marlin Europe v Miss Understood 01

Ok needs to be properly particularised and pleaded as there seems to be some discrepancy as to what the account actually is Current Acc or Credit Card.
I will need to read through all of your thread in the morning after which I'll draft a skeleton defence.

nem

[Miss understood 01]

Re: Marlin Europe v Miss Understood 01

.....missed out this bit that I will be adding to my defence as well:
4: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), however they have failed to reply as of the time of filing this defence.

5: Under Civil Procedure Rule 16.5 (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. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

6: I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

7: In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

Thanks.
P.S: At what stage should I consider enforcing the CPR request with an unless order mentioned by Flaming Parrot?

[Amethyst]

Re: Marlin Europe v Miss Understood 01

I'd give the claimants a call tmw first thing about the extension ref your CPR 31.14 request - if you mention you are considering applying to the court to enforce your request and that they would become liable for those costs - they should agree to the extension.

I would then send a CCA request - using the account details from the claim - they may respond saying it is an overdraft in which case the cca doesn't apply - and then you're in a good position defence wise as you have evidence that your debt on the current account was £103 not £13k. They could apply to amend their claim to the credit card, but they would still then need to produce the agreement for the credit card in order to enforce.

Otherwise your defence is on the right lines, just pleading that you dispute the debt is owed should be enough to get the court to order documents. If they don't agree to the extension in the morning I would apply for the unless order as per FP's post - you are in fast track so it is a perfectly legitimate request. It will cost you an application fee of £155 though, but you should get it back in costs later. If you can't manage that then a defence stating you sent a CPR request and have no information ref the debt, and have requested an extension to give them time to comply but they have refused should be a decent start.

[Miss understood 01]

Re: Marlin Europe v Miss Understood 01

Thank you for your reply,

Just to clarify, as mentioned my deadline is today 20th. Does this mean if I can actually receive a reply from claimant tomorrow, will I be out of tim to file my defence? I.e is there any flexibility with the courts.
Thanks

[FlamingParrot]

Re: Marlin Europe v Miss Understood 01

Thank you for your reply,

Just to clarify, as mentioned my deadline is today 20th. Does this mean if I can actually receive a reply from claimant tomorrow, will I be out of tim to file my defence? I.e is there any flexibility with the courts.
Thanks

To clarify, the courts will not stop you from filing late, not long ago there was someone here who filed 10 days late and defence was accepted. What happens is that once the deadline has passed, the claimants are allowed to request default judgment.

[Miss understood 01]

Re: Marlin Europe v Miss Understood 01

Thanks for your insightful information and advice. Beagles on point again,even on the weekend.

Kind regards
Miss Understood 01