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Thread: Recevied a court claim, require help for O/D debt

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  1. #26
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    Default Re: Recevied a court claim, require help for O/D debt

    Quote Originally Posted by fuqex View Post
    I have spoken with the court, it seems I may have made a bit of a mistake...

    . . . I however sent the defence part also without completing the defence section and this is what was being refereed to.
    It seems the court has done you a favour and given you a chance to rectify the situation.

    You filed a Defence in theory albeit a blank Defence.

    As Jo says you can now file an Amended Defence without needing permission from the court >


    Quote Originally Posted by Joanna C View Post
    Because the court hasnít yet served it on the other side they are giving you the opportunity to file a correct defence before the deadline. Under the CPR rules a party can amend a statement of case (defence), without the need for either consent or the courts permission, if it hasnít been served on the other side. The court has not yet sent the claimant a copy it would seem.

    Those forms are confusing to ordinary people and that Defence box often causes problems. We had a client who had simply put "I don't owe them any money. You will get a letter from a solicitor" which left the door open for us to file an Amended Defence which was a tad more comprehensive

    Di
    I am a Litigation Executive at Joanna Connolly Solicitors a firm which specializes in consumer credit.

    This forumís site rules donít allow me to give advice by PM but if you need to contact me please email di@joannaconnollysolicitors.co.uk . Our initial advice is always free.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

  2. #27
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    Default Re: Recevied a court claim, require help for O/D debt

    Thankyou.

    Feel better now that its not just me being confused.

    Not heard anything from anyone as yet... may have to decide on a defence soon in case i dont hear anything.

    Any suggestions on a defence... or just that ive received no supporting evidence from restons.

  3. #28
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    Default Re: Recevied a court claim, require help for O/D debt


  4. #29
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    Default Re: Recevied a court claim, require help for O/D debt

    Good evening,

    Any suggestions as i have not heard anything from the bank or restons solicitors as yet with regards to sar (Still have 30 days anyway) and the request for the contract has gone on deaf ears.

    Should i respond again with another letter asking for the proof again.

    Thanks again guys

  5. #30
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    Default Re: Recevied a court claim, require help for O/D debt

    To keep you all informed,

    I shall be sending another letter to Restons requesting copies of the contract along with the default notice, giving a further 7 days. After this time I shall have my defence prepared for this claim.

    In the next couple of days I shall post me defence and see if this would be acceptable... I am relying on a couple of things which ill make everyone aware at the time.

  6. #31
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    Default Re: Recevied a court claim, require help for O/D debt

    As stated on another thread, it might be an idea to include the Deed(s) of Assignment in your request list.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  7. #32
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    Default Re: Recevied a court claim, require help for O/D debt

    Thanks Charitynjw,

    Have sent it now, requesting the Deeds of assignment, along with the contract they mentioned and the Default notice, covering all bases.

  8. #33
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    Default Re: Recevied a court claim, require help for O/D debt

    Just received my letter from Restons solicitors this morning, this is how it reads:

    We would point out that the Claim was issues via the County Court Business Centre which is a procedure specifically provided for in the CPR. The procedure only allows a Claimant to insert brief details of the claim and does not allow for the attachment of any enclosures.

    Paragraph 5.2a of Practice Direction 7E specifically states "The requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction."

    We would also remind you that CPR31.13 states: -

    "A party would inspect a document mentioned in -

    (a) a statement of case;
    (b) a witness statement;
    (c) a witness summary; or
    (d) an affidavit"

    You would have been provided with a copy of the contractual Terms and Conditions at the time the account was opened and hence we see no reason why you now require an additional copy.

    Furthermore, the other documents you have requested are not "mentioned" in the Particulars of the claim and therefore CPR31.14(1) does not apply.

    Although your letter states that you require requested documents in order to file a Defence / Counterclaim, we would point out that the Particulars claim contains sufficient information in order for you to understand what the Claim relates to, namely:

    a) the date the account was opened;
    b) the account number;
    c) the outstanding balance;
    d) the name of the original creditor; and
    e) the fact that the account has been assigned to the Claimant and when it was assigned.

    We trust this clarifies matters. As we have issued legal proceedings against you, we recommend that you respond to the Court documentation accordingly.

    Should you fail to respond to the documentation, we may enter judgement in default against you.


    The documents I requested, were a copy of the contract, deeds of assignment and default notice, although they have refused these as they are not part of the particulars, these could be requested within court im presuming as these would need to be required to follow correct pre-court protocol, whereas the contract they refer to will need to be showed, however this shouldn't be too difficult to find for them.

  9. #34
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    Default Re: Recevied a court claim, require help for O/D debt

    Guys,

    Just wondering if the Defence example, is also relevant in Overdraft claims, as there is no mention to this, does overdraft come under section 10 of the CCA1974.

    Quote Originally Posted by MIKE770 View Post
    Just need to get some advice on writing a defence and seems pretty difficult to find any examples specifically for overdraft accounts.

    The defence I shall be putting in are for the following:

    a/ Statute Barred (My last payment in was 30/4/2011 and court action started 5/5/2017) 5 days over the 6 years, thats if they accept COA as last payment day, suppose nothing to lose.
    b/ Not received a default notice, I am not aware of any default notices (Awaiting SAR from the bank for this) - Default was registered on Oct as per my credit record, although I know this cannot be entirely relied upon.
    c/ Not received any information from the solicitors (RE: CCA or Deeds of Assignment), Lack of sufficient paperwork, contrary to CCA 1974.

    Getting close to my defence date of 7/6/17, ideally wanting to be sending by end end of week... any assistance would be grateful, or a pointer as to somewhere I can see something similar.

  10. #35
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    Default Re: Recevied a court claim, require help for O/D debt

    send defence the day before due then the other side cannot have time to mess your defence up, as you may have let them discredit yours & know too much before they submit theirs

    the defences you look at here is a guideline every case is different just amend to suit your case, you can then ask Ame or somebody to look over it for you and suggest any changes before submitting, but if you post make sure you redact it leaving out numbers and personal name etc

  11. #36
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    Default Re: Recevied a court claim, require help for O/D debt

    Do you know how much of the debt is overdraft charges such as bounced DDs etc. If you can put a figure on it then you should be raising a defence under s140A Consumer Credit Act 1974 which will cause the Claimant a headache or three. The s140A Defence reverses the burden of proof onto the opponent, they will have to prove the relationship is not unfair rather than you having to prove the contrary.

    When do you need to lodge the defence? If i can ill try and dig out some basic pleadings on s140A for overdrafts
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  12. #37
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    Default Re: Recevied a court claim, require help for O/D debt

    Thanks for your quick responce, getting a bit edgy as has to be in no later than 7/6/2017, wanting to get it in a bit earlier so can confirm with court its been accepted.


    Im a bit unsure on how much is on bounced DD's etc... as I am still awaiting my SAR from LLoyds TSB, would I be able to put this defence in anyway.


    After some looking into section 140a, I have come across this:


    Contrary to the normal position that ‘he who asserts must prove’, where the debtor alleges that the relationship is unfair, it is for the creditor to prove that it is not (section 140B(9) of the CCA). That said, HHJ Waksman in Carey v HSBC Bank plc[4] held that a mere assertion of a breach on the part of the creditor under the CCA (section 78 in this case) did not in itself give rise to an unfair relationship under section 140A.


    That would suggest I would require proof of such an unfair relationship, and not just an assupmtion of it, would this be that I have had many charges placed onto my account, or something else.


    If you are able to get a basic plea that would be great, thanks.




    The defence I have so far is: (After reading many posts, this is what ive come up with, although probably in its infancy, could do with some help if possible)




    1: I received the claim DXXXXXXX from the Northampton County Court on xxxxxx


    2: The Claimant is put to strict proof that the claim is not statute barred by s5 of The Limitation Act 1980 as the Defendant believes that no payment or acknolwdgement have been made on this account for more than 6 years.


    3: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.


    4: The Claimants statement of case doesnt give adequate information to allow me to properly assess my position with regards to the claim.

    5: The Claimants statement of case states that the account was assigned from Lloyds TSB to Arrow Global Limited on xxxxxx, the Defendant does not recall receiving notice of such an assignment.


    6: On the xxxxxx I sent a request for inspection of the documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Restons Solicitors, due to no reply another was sent on xxxxxx. I requested the Claimant provide copies of the Contract, Default Notice and Notice of Assignment.


    7: Restons Solicitors has not sent any of these documents to me, but stated through receipt of a letter dated xxxxxx that I should already have a copy of my Terms and Conditions.


    8: 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.


    9: 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, these being the Contract which is mentioned within the Particulars along with the Default Notice and Deed of Assignment.


    10: 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.






    Statement of Truth


    The Defendant believes that the facts stated in this Defence are true.




    Signed ____________________________




    Dated _____________________________

  13. #38
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    Default Re: Recevied a court claim, require help for O/D debt

    Sorry guys,

    Just wondering if anyone is able to help, just wanting to get this finalized before sending off, only have access to printer for remainder of today until 9pm, as wanting to send via post.

    Thanks again.

  14. #39
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    Default Re: Recevied a court claim, require help for O/D debt

    I'll give @pt2537 a nudge re the CCA s140 stuff.

    I don't know how much help he can give re your defence, though.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  15. #40
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    Default Re: Recevied a court claim, require help for O/D debt

    Thanks, will await a responce.

    How is the defence so far without the s140, if I am unable to get a defence for this.

  16. #41
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    Default Re: Recevied a court claim, require help for O/D debt

    We usually tack

    It is denied that the Claimant is entitled to the relief as claimed or at all.
    to the bottom, just above the statement of truth.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

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