*** DISCONTINUED ** defence of CCJ from IDEM

[tbees72]

Received a claim? Yes

Issue Date: 07 June 2018
Have you Acknowledged the Claim?: Yes
Total Amount Claimed : £1900
Claimant’s Name: Idem Capital Securities Ltd
Solicitors Firm: R D Shelton ( Claimant's Legal Representative)
Original Creditor: Tesco
Original Debt : credit card

Particulars of Claim:

1) An agreement between xxxxx and Defendant/s (D) subject to standard terms and conditions
2) Claimant (C) purchased the debt on 05/03/2015
3) It was a term of the agreement that if any instalment was not paid on the due date, C would be entitled to repayment of outstanding balance of the total amount payable, less (on payment) any rebate to which D might be entitled.
4) D failed to pay instalments due. C issued a Default Notice requesting payment D failed to pay the sums due, which consequently became immediately due and payable, Formal Demand issued dated 17/05/2018
5) D has failed to pay the outstanding balance of *******

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): It is not statute barred. I have been in a debt management plan - firstly with Payplan and then my own DMP
List any letters you have sent (eg: CCA/ CPR ): I have sent CCA request and CPR 31.14 - they have sent the credit card application form with my signature dated 23.03.2003.
I raise an issue regarding section 136 of the Law of Property Act 1925 and section 82A of the Consumer Credit Act 1974 but they have said " I did not specify what contravention has allegedly been made and consequently Idem cannot respond to the allegations. I might have made an error there as I was trying to pull together a coherent defence from other people's defence examples without really knowing what I was doing.
Any Other Information or Background Details:

I have an appearance at a local county court on March 15th so am aware I need to prepare and send my statement so that they receive it at least 15 days before so rather short of time. I have used this forum and others to reach this point. Idem nearly tripped me up by advising me that they were taking more time to consider & gather information implying that I also had more time. Had I followed their lead I would have been out of time in sending through my counterclaim I got saddled ( or was stupid enough!) to get saddled with an ex-partner's credit card debt . This particular debt was a credit card taken out in 2003. I am pinning my hopes on the cca that they have sent through being unenforceable. Their recent correspondence has left me a bit alarmed- because I have been paying the debt (albeit very slowly) through my own DMP and prior to that through Payplan, there is a lot of correspondence over the years with regard to the debt. All my dealings with Idem have been fractious. They sent a agent from a company called Fidelite to my partners elderly inlaws to discuss the debt with me despite me having advised them I was no longer living there & the list goes on.

My question is do I even have a leg to stand on in the court room. I know that it is for them to prove I owe them the debt. I am worried that the fact I have been paying in monthly instalments is weighty evidence in their favour.

I said yes to mediation early on in the proceedings and they said no.

I didn't hear anything from them at all for several months until a couple of weeks before the court fees were due on February 15 2019- since then I have received a barrage of phone calls through the day ( I am a shift worker mainly nights) so I have not responded and I received a letter the week the fees were due stating that they were willing to set aside the CCJ and put in place a Tomlin Order. I was dubious about entering into any legally binding agreement with these folk as I would be completely at their mercy. I have not replied to that letter.

I have checked with the court and they have paid the court fees so the date is set.

If anyone can advise or point me in the direction of someone on this forum whose thread is similar to mine it would be very much appreciated.

I feel like throwing in the towel because am exhausted from nightshifts and this is a big old headache. but I have come this far so want to see it through! I have also been looking at legal help but really I can't afford it.

[charitynjw]

Hi

Out of interest, what reason(s) make you think that the Tesco agreement may be unenforceable?

& what was/were the issue(s) re s136 LoPA 1925 & s82A CCA 1974 (both re assignment)?

[tbees72]

Thank you for your quick reply- I am on nightshift so will reply later this afternoon

[tbees72]

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r16.5 (3) in relation to any particular allegation to which a specific response has not been made.
2. Paragraph 1 is noted. I have in the past had financial dealings with Tesco Bank.l do not recall the precise details of any agreement but do recall it was on or about ****.
3. Paragraph 2 is noted & paragraph 3 is denied as I have never entered into any agreement with the claimant therefore I can not be in any breach of any terms as no agreement exists with the claimant.

4.Paragraph 4 is denied as above because the claimant could not of issued a Default Notice as they only bought the debt ****** and as far as I can recall any breach with the original creditor would have been on or around ****. The claimant as an assignee would not be able to legally issue a Default Notice as the debt would have been already terminated before assignment.
5. Paragraph 5 is denied. Notwithstanding the above, requests for information pursuant to the consumer credit Act (section 78) and CPR 31.14 were made. A Section 78 request was sent on 16/10/2015, and shows as received 19/10/2015. A CPR 31.14 request was sent signed for 13/06/2018 and shows as received signed for 14/06/2018. IDEM acknowledged they were unable to supply a copy of the agreement and acknowledged until they could do so the agreement cannot be enforced. The claimant has yet to comply with my CPR 31.14
Therefore the Claimant is put to strict proof to:

1. show how the Defendant has entered into an agreement with the Claimant; and
2. show how the Defendant has reached the amount claimed for; and
3. evidence any nature of breach and show service of a Default Notice and Notice of sums in Arrears pursuant to the CCA1974
4. show how the Claimant has the legal right, either under statute or equity,' to issue a claim.

5. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.
6. 0n the alternative, if the Claimant is an assignee of a debt as alleged it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974.
7.By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Hi CharityNJW,

The above is my defence - which reading back now I am not sure is correct. I have got wound up with jargon that I don't really comprehend.
With regard to the reasons why I think the Tescos agreement is unenforceable - it is a credit card application form which was sent out in a marketing mailshot and this original application form had none of the prescribed terms and conditions with it ( including a rate of interest) and it was executed before 6th April 2007. The original agreement was therefore not executed properly...

They have also confirmed that the original vendor has advised that they do not hold a copy of the Default Notice but according to their records is was issued to me on 19 July 2006. I cannot confirm that and don't hold a copy of it myself.

I can see why folk throw in the towel because right about now I don't have a clue how to put the statement together, any guidance greatly appreciated

[charitynjw]

Ok, no panic.

It is important that you do understand the 'jargon'.
If you are quizzed on your submitted statements of defence, it won't do you any favours to say "Dunno what that means, I got it off an internet forum."

What are you unsure about?
If we take them one at a time, it might be easier to explain/digest.

[tbees72]

Thanks again for the quick reply - ok deep breathe!

1.

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r16.5 (3) in relation to any particular allegation to which a specific response has not been made.

The case relies on "CPR r16.5 (3)".... my case relies on it but I don't know what it means!

[charitynjw]

Btw, if the agreement was defective as you say & it was issued before April 2007 with no prescribed terms, it would not just be unenforceable, it would be irredeemably unenforceable.

The judge then has no discretion........he/she must throw it out.

[tbees72]

Particulars of Claim:

1) An agreement between xxxxx and Defendant/s (D) subject to standard terms and conditions
2) Claimant (C) purchased the debt on 05/03/2015
3) It was a term of the agreement that if any instalment was not paid on the due date, C would be entitled to repayment of outstanding balance of the total amount payable, less (on payment) any rebate to which D might be entitled.
4) D failed to pay instalments due. C issued a Default Notice requesting payment D failed to pay the sums due, which consequently became immediately due and payable, Formal Demand issued dated 17/05/2018
5) D has failed to pay the outstanding balance of *******

Also, what about the particulars of their claim makes it vague and generic? My words but don't know why? ..

& 4) C have not issued me with a Default Notice

[charitynjw]

Thanks again for the quick reply - ok deep breathe!

1.

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r16.5 (3) in relation to any particular allegation to which a specific response has not been made.

The case relies on "CPR r16.5 (3)".... my case relies on it but I don't know what it means!

CPR = Civil Procedure Rules (The rules by which court cases are conducted).
These are easily sourced from the internet, so CPR 16.5(3) would be


Content of defence

16.5

(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.


Which basically means that if the Claimant (the one bringing the claim) alleges something in his/her Particulars of Claim (the bit on the court claim form which outlines the Claimant's case/reason for taking the action), unless the Defendant deals with it (ie challenges it), it will automatically be accepted by the court as correct.,

[tbees72]

Great.. thanks - so in simple terms - it's over to them to prove I owe the debt?

2. I have in the past had financial dealings with Tesco Bank.l do not recall the precise details of any agreement but do recall it was on or about ****.

- To clarify I am saying I have dealt with Tescos Bank but I am unsure about precise details

Paragraph 2 is noted & paragraph 3 is denied as I have never entered into any agreement with the claimant therefore I can not be in any breach of any terms as no agreement exists with the claimant. - Is this argument valid in legal terms?

[tbees72]

CPR = Civil Procedure Rules (The rules by which court cases are conducted).
These are easily sourced from the internet, so CPR 16.5(3) would be


Content of defence

16.5

(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.


Which basically means that if the Claimant (the one bringing the claim) alleges something in his/her Particulars of Claim (the bit on the court claim form which outlines the Claimant's case/reason for taking the action), unless the Defendant deals with it (ie challenges it), it will automatically be accepted by the court as correct.,

Great! Understood. I understood the other way around - that it was over to them to prove it!.. Gawd I've a lot to learn sharpish!

[tbees72]

2. I have in the past had financial dealings with Tesco Bank.l do not recall the precise details of any agreement but do recall it was on or about ****.

- To clarify I am saying I have dealt with Tescos Bank but I am unsure about precise details

Paragraph 2 is noted & paragraph 3 is denied as I have never entered into any agreement with the claimant therefore I can not be in any breach of any terms as no agreement exists with the claimant. - Is this argument valid in legal terms?

[charitynjw]

Particulars of Claim:

1) An agreement between xxxxx and Defendant/s (D) subject to standard terms and conditions
2) Claimant (C) purchased the debt on 05/03/2015
3) It was a term of the agreement that if any instalment was not paid on the due date, C would be entitled to repayment of outstanding balance of the total amount payable, less (on payment) any rebate to which D might be entitled.
4) D failed to pay instalments due. C issued a Default Notice requesting payment D failed to pay the sums due, which consequently became immediately due and payable, Formal Demand issued dated 17/05/2018
5) D has failed to pay the outstanding balance of *******

Also, what about the particulars of their claim makes it vague and generic? My words but don't know why? ..

& 4) C have not issued me with a Default Notice

Vague & generic have their ordinary dictionary meaning (ie not clear/uncertain & not specific enough)
We often find that Claimant's Particulars of Claim are sparse & lacking in detail.
This covers that scenario.

In fact the essence of a good defence is
to pick apart the Claimant's Particulars (sounds rude, doesn't it, lol)
rebut (challenge) where necessary,....Obviously very important!
admit where necessary (but qualify if possible.....ie Claimant says xxx occurred. Well, yes but,it was due to yyy for which the Claimant is responsible),
add the Defendant's side of the story,
deny that the Claimant deserves relief (basically, that he/she doesn't deserve to have judgment granted to them)
& finish with a signed statement of truth.

That is fairly simplistic but it gives an idea of what to look out for

[tbees72]

Great! thank you.. it's getting a bit clearer on how to approach it .. I would really enjoy picking apart the Claimant's particulars if I was more confident in what I am doing! lol ..

[tbees72]

4.Paragraph 4 is denied as above because the claimant could not of issued a Default Notice as they only bought the debt ****** and as far as I can recall any breach with the original creditor would have been on or around ****. The claimant as an assignee would not be able to legally issue a Default Notice as the debt would have been already terminated before assignment.

Does this argument hold any weight? They have not been able to supply a Default Notice from Tesco but they say Tesco have confirmed the date that the default notice was issued. Does it matter to the judge if they are not able to produce documents they say exist - is it enough for the judge that they say Tescos have confirmed the date of issue?

And similarly with my argument about no prescribed terms and conditions with the original credit card application- is the onus on them to provide evidence they were issued or is the onus on me to prove I did not receive them. Can I just say I did not receive them or do I have to qualify that?

Sorry for the long old post..& it's late.. i wish I had a fairy god-lawyer!! I have two days to complete- thank you so much for your time thus far - if i can post up my defence tomorrow and you can cast your eye over it that would be marvellous