Payday loan court action whilst in middle of Irressponsible lending complaint

[rubytwoshoes]

Hi

I have an Irresponsible Lending (irl) complaint with peachy loans which is in the process of being considered. I informed TM legal services of this on receipt of the pre action letter but they have gone ahead and issued court papers 30 days later despite me sending the administrators reply stating it would be at least 8 weeks for an outcome to be communicated.

I have acknowledged service of the claim and have asked TM legal services to stay the proceedings as debt is still in dispute as per FCA rule CONC 7.14.1: (1) A firm must suspend any steps it takes or its agent takes in the recovery of a debt from a customer where the customer disputes the debt on valid grounds or what may be valid grounds.

My question is once i receive their reply do i just write to the court with evidence that it is stayed and wait to hear from them or do i submit my defence stating the debt is in dispute - conscious that i only have 28 days to enter my defence. I don't want them to sneak a CCJ through.

The POC is sound as is the paper work - however the issue of IRL is outstanding

Claim details
issue date 1st December
AOS 10th Decemeber
amount - under £500
POC
the claimant claims the amount om respect of an unpaid loam regulated by the consumer credit act 1974. The loan was funded by cash on the go ltd. The defendant has failed to make payments ,,,,,,,the claimant claims interest at 0.8%

Advice very welcome

[Celestine]

Grrr very bad practice here.

Yes get your defence submitted, that puts you in a safe position and possibly they wont respond to your defence; which will result in an automatic stay anyway.
pt2537 for advice on whether a strike out application would be worth considering.

[pt2537]

Agreed. Poor showing but not unexpected from these firms im afraid.

Seems to me that at the very least an application for either a strike out or a stay pending the out come of the FOS investigation should be put in place. If the Defendant accepts an ombudsman award it becomes binding per Clarke v Infocus Asset Management, thus would create a perverse position if you have an FOS award in your favour and they go on to get a judgment in their favour. I accept this is unlikely as it would be Res Judicata but it is a possibility if this claim is allowed to continue to fester.

I would write to them and invite them to withdraw their claim pending the outcome of the FOS investigation, and i would put them on notice of the intention to make an application and seek costs from them if they dont.

Id certainly make sure you get a Defence in too

[rubytwoshoes]

Thank you both so very much for taking the time to reply, it is very much appreciated.
Can i just confirm that the basis for my defence would be that the account is in dispute with the original lender and that action should not have been taken ? I cant see any other grounds as it is a newish debt and paperwork is OK

Thank you again for your advice

[Celestine]

Yes, you can and should still request all the relevant documents such as agreements, default notices and such like, but the main point of your defence is the commencement of legal action while an account is under an active formal complaint.

[pt2537]

id say the basis of your defence is the claim is an abuse of the Court process and likely to obstruct the just disposal of the case. Thats the reality of it, the claim should never have been made, it should have been placed on hold while the FOS investigate.

[rubytwoshoes]

Many thanks for taking the time to reply - I am very grateful.
I will proceed as advised
Best wishes
RTS

[rubytwoshoes]

Hi all

Sorry to ask again but would really appreciate thoughts on my defence below

TM legal services have agreed to put the account on 'hold whilst investigations are concluded' but i would prefer to get my defence in ( i have until 28th)

as before all the paperwork is OK its the IRL that is outstanding , defence to be submitted via MCOL

DRAFT DEFENCE

1.I, RTS am the Defendant in this action and make the following statement as my defence to the claim made by XXX
2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants' particulars of claim and put the Claimant to strict proof thereof.

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

4.It is admitted that that the Defendant has in the past entered into agreements with XX

Non Compliance with Practice Direction for Pre-Action Conduct and Protocols
5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim..

6. A Pre Action Protocol letter was served on the Defendant by TM Legal Services acting on behalf of the Claimant. The Defendant responded on 23^rd October 2020 in which the Defendant clearly stated that an Irresponsible Lending Complaint had been logged with the claimant and the debt was disputed. Exhbits A and B

7. The Defendant advers that court proceedings should not have commenced as the Claimant was aware that the debt was in dispute contrary to Practice Direction for Pre-Action Conduct and Protocols 6.1 and 6.2 :

6.1 If the parties still cannot agree about the existence, enforceability, amount or any other aspect of the debt, they should both take appropriate steps to resolve the dispute without starting court proceedings and, in particular, should consider the use of an appropriate form of Alternative Dispute Resolution (ADR).

6.2 ADR may simply take the form of discussion and negotiation, or it may involve some more formal process such as a complaint to the Financial Ombudsman Service where the dispute concerns a debt regulated under the Consumer Credit Act 1974.

7. The Claimant has also failed to comply with FCA rule CONC 7.14.1:
(1) A firm must suspend any steps it takes or its agent takes in the recovery of a debt from a customer where the customer disputes the debt on valid grounds or what may be valid grounds.

8.It is denied that the Claimant is entitled to the relief as claimed or at all. The Defendant believes the Claimant has failed to comply with the Practice Direction for Pre-Action Conduct and Protocols insofar as the Claimant has not complied with the Protocols prior to the commencement of these proceedings. The Defendant has therefore been deprived of any opportunity to address the Claimant's allegations without the need for legal proceedings.

Conclusion

9. 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.

10.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.

11.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend her 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.