BW Legal / PRAC Financial Claim

[The Chode]

That means there should be notice of assignment from one to the other, so you don't have all the notices of assignment. That wasn't name change it was two companies of similar names, so without a notice the latter was never assigned the debt and therefore couldn't assign it to Prac subsequently meaning they aren't the lawful owner of the debt, thus not legally able to bring the claim.

So should I deny the claim then - as they are claiming from Instant Cash Loans t/a Payday Express and my CCA was Express Finance t/a Payday Express?

For example:

4.It is denied that the Defendant has previously entered into an agreement with Instant Cash Loans t/a Payday Express for provision of credit.

[jaguarsuk]

If you look up Express finance Limited and Instant Cash Loans Limited on companies house you will see they are two separate companies. That means that when Express Finance Limited sold or transferred the debt to Instant Cash Loans Limited, Express Finance Limited should have sent you a notice of assignment and if the claimant can't prove they did then Instant Cash Loans Limited didn't own the debt to be able to sell or transfer it to them.

Yes you should be denying the claim because you entered into agreement with Express finance t/a Payday Express not as the claim form says "monies due from the defendant to the claimant under a loan agreement regulated by the consumer credit act 1974 between the defendant and Instant Cash Loans Ltd t/a Payday Express under account reference xxxxxxxx."

You'll file a defence in such a way to defend on these issues, but not exactly what your full argument is, that way when you can use these points for your defence and are only fully showing your hand at the last possible time giving them only 14 days to try to dig up documents that may be impossible for them to obtain.

You don't show your hand just yet, but in your Witness Statement just before court your argument would be that the claimant has provided you with a CCA, but not the one they are claiming you entered into, so have not fulfilled your CCA request nor have they evidenced that part of their claim.

That they have yet to provide a copy of a default notice Instant Cash Loans Ltd t/a Payday Express or Express finance t/a Payday Express compliant with the CCA 1974.

And if their supposition is that it was a change of company name regards the credit agreement that Express finance Limited and Instant Cash Loans Limited are two separate companies at companies house (print here: https://beta.companieshouse.gov.uk/company/02685515 and here: https://beta.companieshouse.gov.uk/company/02893977 to add as evidence), therefore they haven't evidenced notice of assignment from one to the other meaning they do not have the legal right to bring the claim.

Post a copy of your draft defence (personal info removed), they have sent all they are going to and you just need to get on with it now.

[The Chode]

If you look up Express finance Limited and Instant Cash Loans Limited on companies house you will see they are two separate companies. That means that when Express Finance Limited sold or transferred the debt to Instant Cash Loans Limited, Express Finance Limited should have sent you a notice of assignment and if the claimant can't prove they did then Instant Cash Loans Limited didn't own the debt to be able to sell or transfer it to them.

Yes you should be denying the claim because you entered into agreement with Express finance t/a Payday Express not as the claim form says "monies due from the defendant to the claimant under a loan agreement regulated by the consumer credit act 1974 between the defendant and Instant Cash Loans Ltd t/a Payday Express under account reference xxxxxxxx."

You'll file a defence in such a way to defend on these issues, but not exactly what your full argument is, that way when you can use these points for your defence and are only fully showing your hand at the last possible time giving them only 14 days to try to dig up documents that may be impossible for them to obtain.

You don't show your hand just yet, but in your Witness Statement just before court your argument would be that the claimant has provided you with a CCA, but not the one they are claiming you entered into, so have not fulfilled your CCA request nor have they evidenced that part of their claim.

That they have yet to provide a copy of a default notice Instant Cash Loans Ltd t/a Payday Express or Express finance t/a Payday Express compliant with the CCA 1974.

And if their supposition is that it was a change of company name regards the credit agreement that Express finance Limited and Instant Cash Loans Limited are two separate companies at companies house (print here: https://beta.companieshouse.gov.uk/company/02685515 and here: https://beta.companieshouse.gov.uk/company/02893977 to add as evidence), therefore they haven't evidenced notice of assignment from one to the other meaning they do not have the legal right to bring the claim.

Post a copy of your draft defence (personal info removed), they have sent all they are going to and you just need to get on with it now.

From the defence example I have this - I have left out the first part as it is just the claim number / info


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




3.This claim is for a Loan agreement regulated under the Consumer Credit Act 1974.




4.It is denied that the Defendant has previously entered into an agreement with Instant Cash Loans Ltd. t/a Payday Express for provision of credit.




5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.




6.The Claimant’s Particulars of Claim fail to state when the agreement was entered into.





7.The Defendant contends the alleged debt is statute barred by virtue of Section 5 of the Limitations Act 1980 in that no payment or acknowledgment has been made for over 6 years




8.The Claimants statement of case states that the account was assigned from Instant Cash Loans Ltd. t/a Payday Express to PRAC Financial on 09/12/2016. The Defendant does not recall receiving notice of this assignment.




9.It is denied that Instant Cash Loans Ltd. t/a Payday Express served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.




10.On the 13/09/2019 The Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to BW Legal. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.




11.BW Legal has not provided all of these documents to the Defendant.




12.On the 13/09/2019 The Defendant sent a formal request for a copy of the original agreement to PRAC Financial pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.



14. The Defendant has asked the Claimant if we may agree to extend the time period allowed for filing of the defence pending receipt of documents (as allowed under CPR 15.5), but they have declined.


15.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.


16.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.


17.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.


18.It is denied that the Claimant is entitled to the relief as claimed or at all.




Anything missing or anything to add?

[jaguarsuk]

A couple of subtle changes....


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

3.This claim appears to be for a loan agreement regulated under the Consumer Credit Act 1974.

4.It is denied that the Defendant has previously entered into an agreement with Instant Cash Loans Ltd. t/a Payday Express for provision of credit.

5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

6.The Defendant contends the alleged debt is statute barred by virtue of Section 5 of the Limitations Act 1980 in that any agreement defaulted over 6 years ago and no payment has been made relating to such agreements since.

7.The Claimants statement of case states that the account was assigned from Instant Cash Loans Ltd. t/a Payday Express to PRAC Financial on 09/12/2016. The Defendant does not recall receiving notice of this assignment.

8.It is denied that Instant Cash Loans Ltd. t/a Payday Express served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

9. On the 13/09/2019 the Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to BW Legal. The request was for the Claimant to provide copies of any Agreement(s), Default Notice(s) and Notice(s) of Assignment.

10. BW Legal have not provided a credit agreement between the Defendant and Instant Cash Loans Ltd. t/a Payday Express, no Default Notice from Instant Cash Loans Ltd. t/a Payday Express and the Defendant believes they have not evidence assignment.

11. The Defendant avers that the Claimant does not have the legal right pursuant to the Law of Property Act 1925 s.136 to bring the claim due to deficiency in the assignment between Instant Cash Loans Ltd. t/a Payday Express and PRAC Financial.

12.On the 13/09/2019 The Defendant sent a formal request for a copy of the original agreement to PRAC Financial pursuant to section 77 of the Consumer Credit Act 1974 along with the statutory £1 fee.

13. PRAC Financial has still not provided a credit agreement between the Defendant and Instant Cash Loans Ltd. t/a Payday Express.

14. The Defendant has asked the Claimant if we may agree to extend the time period allowed for filing of the defence pending receipt of documents as allowed under CPR 15.5, but they have declined.

15.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, the Defendant respectfully requests that the Claimant be required to prove the allegation that the money is owed as claimed.

16.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for the Defendant to fully plead his case else the Claim should stand struck out.

17.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

18.It is denied that the Claimant is entitled to the relief as claimed or at all.

[The Chode]

A couple of subtle changes....


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

3.This claim appears to be for a loan agreement regulated under the Consumer Credit Act 1974.

4.It is denied that the Defendant has previously entered into an agreement with Instant Cash Loans Ltd. t/a Payday Express for provision of credit.

5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

6.The Defendant contends the alleged debt is statute barred by virtue of Section 5 of the Limitations Act 1980 in that any agreement defaulted over 6 years ago and no payment has been made relating to such agreements since.

7.The Claimants statement of case states that the account was assigned from Instant Cash Loans Ltd. t/a Payday Express to PRAC Financial on 09/12/2016. The Defendant does not recall receiving notice of this assignment.

8.It is denied that Instant Cash Loans Ltd. t/a Payday Express served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

9. On the 13/09/2019 the Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to BW Legal. The request was for the Claimant to provide copies of any Agreement(s), Default Notice(s) and Notice(s) of Assignment.

10. BW Legal have not provided a credit agreement between the Defendant and Instant Cash Loans Ltd. t/a Payday Express, no Default Notice from Instant Cash Loans Ltd. t/a Payday Express and the Defendant believes they have not evidence assignment.

11. The Defendant avers that the Claimant does not have the legal right pursuant to the Law of Property Act 1925 s.136 to bring the claim due to deficiency in the assignment between Instant Cash Loans Ltd. t/a Payday Express and PRAC Financial.

12.On the 13/09/2019 The Defendant sent a formal request for a copy of the original agreement to PRAC Financial pursuant to section 77 of the Consumer Credit Act 1974 along with the statutory £1 fee.

13. PRAC Financial has still not provided a credit agreement between the Defendant and Instant Cash Loans Ltd. t/a Payday Express.

14. The Defendant has asked the Claimant if we may agree to extend the time period allowed for filing of the defence pending receipt of documents as allowed under CPR 15.5, but they have declined.

15.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, the Defendant respectfully requests that the Claimant be required to prove the allegation that the money is owed as claimed.

16.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for the Defendant to fully plead his case else the Claim should stand struck out.

17.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

18.It is denied that the Claimant is entitled to the relief as claimed or at all.

Hi Again,

My defence was accepted and I have now received a further letter from the court stating the following:

TAKE NOTICE THAT:

1. This is a defended claim. The defendant has filed a defence

2. It appears that this case is suitable for allocation to the small claims track.

If you believe that this track is not the appropriate track for the claim, you must complete box C1 on the small claims directions questionnaire form
N180 and explain why.

3. You must by November 18th complete the small claims directions questionnaire and file it with the court office and serve copes on all other parties.


Is this the most suitable way forward or should I say no to the allocation of this track?

Thanks again in advance

[jaguarsuk]

Is this the most suitable way forward or

Yes

should I say no to the allocation of this track?

No, agree to the track.

A guide to completing N180's is linked in my signature.

[The Chode]

Yes


No, agree to the track.

A guide to completing N180's is linked in my signature.

How long do these things usually take? I submitted this within the given timeframe and have not heard anything since. I was told I would receive an appointment / slot for mediation via email and it has been nearly 3 months without any contact from either the court or the company.

Also, the debt has now disappeared from my credit score - is it possible that they have conceded and are no longer pursuing?

[jaguarsuk]

How long do these things usually take? I submitted this within the given timeframe and have not heard anything since. I was told I would receive an appointment / slot for mediation via email and it has been nearly 3 months without any contact from either the court or the company.

Also, the debt has now disappeared from my credit score - is it possible that they have conceded and are no longer pursuing?

Contact the court to find out what is happening, they may not have returned their directions questionnaire and the claim has become 'stayed.'

[The Chode]

Contact the court to find out what is happening, they may not have returned their directions questionnaire and the claim has become 'stayed.'

Hi again.

After months of court incompetence, I finally have a hearing date and now have to prepare witness statements. I am slightly unsure on how to proceed though

[MIKE770]

Witness Statements

[mike22861]

I have been through exactly the same with BW Legal and PRAC which have the same director Racheal Withers.From my experience you won't get any information until they send you their witness statement a few days before the deadline. Mine had a reconstitute default notice made out from Instant Cash Loans Ltd but 4 years before Instant cash loans ltd obtained a credit licence. They also sent an advocate to court who stated that they had not received my witness statement, and on the reschedule hearing stated that they had received my statement but without any attachments, fortunately I had a emailed receipt for the statement and the attachments.
They are full of tricks do not expect them to be honest professional or fair.

[The Chode]

I have been through exactly the same with BW Legal and PRAC which have the same director Racheal Withers.From my experience you won't get any information until they send you their witness statement a few days before the deadline. Mine had a reconstitute default notice made out from Instant Cash Loans Ltd but 4 years before Instant cash loans ltd obtained a credit licence. They also sent an advocate to court who stated that they had not received my witness statement, and on the reschedule hearing stated that they had received my statement but without any attachments, fortunately I had a emailed receipt for the statement and the attachments.
They are full of tricks do not expect them to be honest professional or fair.

I have received a "reply to defence" it reads like a witness statement though - is this what you mean??? Should I add rebuttals to any of their points made in their reply?

jaguarsuk

[edit] In the reply to the defence they are claiming that Instant Cash Loans are the parent company of Express Finance (Bromley) with whom the initial agreement is signed / issued by. Does this mean they are exempt from issuing a transfer of ownership?

[jaguarsuk]

No, they must still legally assign the debt from the parent to the child company and then again to PRAC for it to be legally assigned.

Post a redacted copy of the reply to defence, you’ll address any points in it when the time comes to file witness statements.

[The Chode]

No, they must still legally assign the debt from the parent to the child company and then again to PRAC for it to be legally assigned.

Post a redacted copy of the reply to defence, you’ll address any points in it when the time comes to file witness statements.

Here is the redacted reply from them (anything in red are notes added by myself)


The Agreement

1. The claim of the Claimant is for payment of [redacted] being the balance of monies due against a credit agreement (Agreement) made between the Defendant and Instant Cash Loans Limited who I'm instructed were at the time of the Agreement (referred to below) the parent company of Express Finance (Bromley) Ltd, trading as Payday Express (Originating Creditor).

2. On [redacted] the Defendant entered into a short term loan agreement (Agreement 1) with the Originating Creditor. A copy of Agreement 1 and corresponding terms and conditions are now shown at pages [1-3]. Agreement 1 was regulated by the Consumer Credit Act 1974 (Act).

3. The necessary consent to be bound by the terms and conditions underpinning the Agreement would have been given by the Defendant upon ticking the appropriate boxes on her online application form. The Defendant's consent would have therefore been provided to the Originating Creditor by way of a digital signature when she signed on [redacted]

4. In addition to incorporating the Originating Creditor's standard terms and conditions of lending (Terms) Agreement 1 also contained the following express terms:

I. The Defendant entered into Agreement 1 with the Originating Creditor for a loan in the sum of [redacted] (Credit Sum);

ii. The total amount payable under Agreement 1 was [redacted]; whereby the Defendant was required to make one lump sum payment of [redacted] (Repayment Amount) on [redacted] (Initial Repayment Date);

iii. The initial duration of Agreement 1 was [redacted] days extendable at the Originating Creditor's discretion; and

iv. The interest claimed under Agreement 1 was calculated at the annual rate of [redacted]


5. In the event of a missed payment, it was an express term of Agreement 1 that the Defendant may be charged "any reasonable expenses and costs" the Claimant incurred in order to enforce Agreement 1's terms.

Acceptance of Agreement 1

6. Agreement 1 included a declaration that once Agreement 1 was electronically signed, the Defendant confirmed they were entering into Agreement 1 and accepted all the incorporated terms.

7. The Defendant also provided an undertaking that the details that they provided in applying for the finance were “correct and complete” and that the Defendant would notify the Claimant of any changes to those details.

Payment history

8. Now shown at pages [redacted] is a copy of the deferred agreement between the Defendant and the Originating Creditor which is dated [redacted] (Agreement 2) again signed by the Defendant digitally
[NO SIGNATURE ON THIS ON PROVIDED DOCUMENT].

In effect, Agreement 2, replaced Agreement 1. The Terms remained the same and the loan was transferred to each new account, with the key change being the Repayment Date.

Under Agreement 2, the Originating Creditor agreed to extend the Initial Repayment Date to [redacted] (Repayment Date 2). The Originating Creditor applied a [redacted] days cycle from Repayment Date 2 to collect the remaining sums due under the deferred agreement in full.

10. In accordance with the Originating Creditor's [redacted] days circle, the last date the Defendant was afforded to make payment for the sums due under Agreement 2 was calculated to be [redacted] The Defendant failed to make the required payment on Repayment Date 2.

Statement of Account

11. Now shown at page [redacted] of “[redacted]” is copy of the Defendant's Statement of Account (Statement) with the Originating Creditor.

i. That the Originating Creditor advanced the Credit sum of[redacted] to the Defendant;

ii. That the Originating Creditor agreed a deferral of the repayments due as set out above;

iii. That the Defendant failed to make the required payment under the Agreement 2;

iv. That, as the Defendant failed to make the agreed payments, the Originating Creditor applied interest to the loan in line with the agreed Terms; and

v. That as of [redacted], the Defendant's account had a remaining balance outstanding of [redacted] (being the principal amount claimed under these proceedings).

12. The Statement adduced above clearly shows that the Defendant has enjoyed the benefit of the credit facility provided to him under Agreement 2.

Default Notice

13. The Defendant's Agreement therefore fell into arrears on Repayment Date 2 as the Defendant failed to make his contractual payment due under Agreement 2.

14. As a consequence of the Defendant's default under the Agreement in not making his

contractual payments, the Originating Creditor issued the Defendant with a notice of default (Default Notice). The Default Notice was served in compliance with section 87 (1) of the Consumer Credit Act 1974.

15. Now shown at pages [redacted] of "[redacted]” is a further copy of a Default Notice issued to the

Defendant by the Claimant on [redacted] for the sums outstanding under the Agreement along with a letter from the Claimant's solicitors (BW Legal). This letter from BW Legal confirms that that the Defendant's account defaulted on [redacted] and for good order, is re-issuing the Default Notice again. BW Legal also confirmed that "our client will not make any further amendment to your credit file default date as a result of sending you this Notice and that the default date registered on your credit file will remain unchanged".

[ THERE IS NO COPY OF AN ORIGINAL DEFAULT NOTICE – ONLY A LETTER FROM PRAC CLAIMING ONE WAS ISSUED]

16. Now shown at pages [redacted] of “[redacted]” is an extract obtained from the Claimant's case management system which is exhibited for the purpose of providing further details of when the Default Notice sent to the Defendant by the Originating Creditor, and when this was registered with the credit reference bureau. The exhibit confirms that the credit reference bureau registered the Default Notice against the Defendant's credit file on [redacted]

17. The Defendant breached the terms of the Default Notice and the Originating Creditor

exercised its right to terminate the Agreement and registered the default against the Defendant's credit file.

18. The Claimant's claim is for the outstanding sums due under the Agreement. The Claimant's entitlement to the sums is set out below.

Notice of Assignment

19. The rights and benefits of the Agreement were duly assigned from the Originating Creditor to the Claimant by way of a Debt Sale Agreement dated [redacted]

20. The Notice of Assignment annexed was served upon the Defendant by the Claimant and the Originating Creditor on or around [redacted], in accordance with the provisions of section 136 of the Law of Property Act 1925. Now shown at pages [redacted]is a copy of the Notice of Assignment.

[THERE IS NO NOTICE OF ASSIGNMENT FROM EFB to ICL – ONLY ICL TO PRAC]

21. For there to be a valid assignment of a legal debt there must be compliance with s136(1) of the

Law of Property Act 1925.

22. The Notice of Assignment above clearly states that the Defendant's account is owned by the

Claimant, and provides the Defendant sufficient notice pursuant to s136 (1) of the Law of Property Act 1925.

23. The Notice of Assignment was sent to the Defendant's last known address at the time. The Claimant has no reason to believe that the Defendant did not receive the Notice of Assignment. The Defendant is put to strict proof to the contrary.

[ I WAS ON THE ELECTORAL ROLE AT AN ADDRESS IN 2016 – COULD EASILY HAVE BEEN FOUND]

25. Section 29(5)

Subject to subsection (6) below, where any right of action has accrued to recover any debt or other liquidated pecuniary claim; or
(b) any claim to the personal estate of a deceased person or to any share or interest in any such estate;

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

26.I am instructed by the initial Default Notice was served upon the Defendant by the Originating Creditor on [redacted], thereby re-setting the right of action.

27. The Claimant's Claim was issued on [redacted]evidently within the six years of the last cause of action, being [redacted] (being the date when the Default Notice was registered against the Defendant's credit file).

28. The Claimant's claim is not barred under any limitation, and it is clear the balance claimed under these proceedings is due and owing.

29. It is clear from the evidence that the Defendant had dealings with the Originating Creditor.

[MIKE770]

Dealings maybe. Twist of words. Proof of contract