BusyGran v Perch / Lending Stream / TM Legal

[BusyGran59]

Hello everyone
My son received a county court claim this week. He gave me permission to deal with the debt collector/solicitors issuing the claim and I have now received all paperwork from them. My son wants to make an offer of payment and wants to avoid going to court. I would like some help in sorting out the best next steps as he has buried his head in the sand about this and if he’d told me earlier (at the time he defaulted on his payments etc) we could have sorted it out much easier. I won’t bore you on this post I wanted to say hello and hopefully be redirected to where to post next. Many thanks in advance for your help.

[ploddertom]

Why don't you tell us some more about what this is all about.

[BusyGran59]

Why don't you tell us some more about what this is all about.

Hello Ploddertom and thanks for responding. I read through the general posting info when I joined up, and as I understood it I hadn't to give details in the welcome post but would be redirected elsewhere, which is why I only gave a vague outline of what the problem is. I do apologise .

This debt is regarding two payday loans from Lending Stream upon which my son defaulted in payment, and which we have received a county court claim form (Northampton) issued on 25th October by TM Legal Services (they are acting for the Claimant Perch Capital Ltd). TM have provided paperwork including the two CCA agreements, default notices,and statements of account from Lending Stream. My son is not denying he had the payday loans and wants to offer repayments rather than end up with a CCJ. His employment circumstances have changed and he is on a lot less wages now than when he took out the payday loans. TM Legal Services have offered to discuss the matter over the phone but I'm concerned that if we don't fill in the court forms correctly they could still go for a CCJ, and I know its always better to get everything in writing. These are the POC:
"The Claimant claims this amount in respect of an unpaid loan regulated by The Consumer Credit Act 1974. The loan was funded by GAIN Credit LLC. The Defendant has failed to make payments in accordance with the terms of the credit agreement. The credit agreement was assigned to the Claimant, upon which a Notice of Assignment was sent to the Defendant. The Defendant has either failed to respond to the Claimant or has failed to maintain regular payments. The Claimant has issued a letter of claim, providing the Defendant with a further opportunity to arrange repayment of the outstanding balance to no avail. The Claimant claims interest under Section 69 of the County Court Act 1984 at the rate of 8% a year from (gives dates) on (gives amount) and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.16"

Amount claimed is over £750 and they have added a court fee and legal representative's costs making a total of over £850. My son originally borrowed twice from Lending Stream, one loan of around £150 and one loan of around £200 in 2018 The two CCAs show one date in April for the first loan and then for the second loan only 7 days later! My son is slightly autistic which is why I am dealing with this as he becomes very stressed. Incidentally all the paperwork from Lending Stream he received (unfortunately he ignored it) but then the correspondence from TM was sent to him by email and he never received any of it. It turns out it went into his junk folder and got deleted which they have acknowledged could have happened! They are also refusing to provide us with a Notice of Assignment as they say they already sent it to my son via email and he can't have another one (despite it being lost in the spam folder).. It was only when they finally wrote by snail mail and said that they were taking him to court that we realised what was going on. Accordingly we immediately sent a recorded delivery letter asking for proof of the alleged debt, which crossed in the post with the issue of the County Court Claim form, however they have since sent me via email all the paperwork as we requested (except the NOA).

Thanks for taking the time to read this. I hope I've provided enough information? Kind regards BusyGran

[ploddertom]

Amethyst

[Matty B]

They have not pleaded the default notice have they?
pt2537

[Amethyst]

Hey xxx I'll move you to the court forum and reply there shortly Thanks Plodder xx

[Amethyst]

Can you tell me what dates the loans were taken out ( approx) please?

This debt is regarding two payday loans from Lending Stream upon which my son defaulted in payment, and which we have received a county court claim form (Northampton) issued on 25th October by TM Legal Services (they are acting for the Claimant Perch Capital Ltd).

YEs they will need to provide the notice of assignment ( and evidence of such assignment, depending on dates that could be from Lending Stream to GAIN to Perch …. there may be something to Asset in the middle as well.

Lending Stream is a 'trading name' of GAIN Credit LLC and they are FCA authorised. However Lending Stream has only been a trading name of GAIN since December 2017.

TM have provided paperwork including the two CCA agreements, default notices,and statements of account from Lending Stream. My son is not denying he had the payday loans and wants to offer repayments rather than end up with a CCJ. His employment circumstances have changed and he is on a lot less wages now than when he took out the payday loans.

Do the agreements have the dates on, and do they say GAIN on them anywhere ? or just Lending Stream ?

Do the statements of account show how the amounts ramped up ? Did the second loan pay off the first ?

TM Legal Services have offered to discuss the matter over the phone but I'm concerned that if we don't fill in the court forms correctly they could still go for a CCJ, and I know its always better to get everything in writing.

I agree. I would go and get the claim acknowledged with intent to defend in full if you haven't already. It is not binding and just protects his position for now. What is the date of issue of the claim ?

These are the POC:
"The Claimant claims this amount in respect of an unpaid loan regulated by The Consumer Credit Act 1974. The loan was funded by GAIN Credit LLC. The Defendant has failed to make payments in accordance with the terms of the credit agreement. The credit agreement was assigned to the Claimant, upon which a Notice of Assignment was sent to the Defendant. The Defendant has either failed to respond to the Claimant or has failed to maintain regular payments. The Claimant has issued a letter of claim, providing the Defendant with a further opportunity to arrange repayment of the outstanding balance to no avail. The Claimant claims interest under Section 69 of the County Court Act 1984 at the rate of 8% a year from (gives dates) on (gives amount) and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.16"

They don't say who assigned the agreement to the Claimant.
The Claimant is not FCA authorised.
They haven't plead any default or termination.

"The loan was funded by GAIN Credit LLC" - okay who is the agreement with ? ( just suspicious they word it this way that the original agreement was not with GAIN )

Amount claimed is over £750 and they have added a court fee and legal representative's costs making a total of over £850. My son originally borrowed twice from Lending Stream, one loan of around £150 and one loan of around £200 in 2018 The two CCAs show one date in April for the first loan and then for the second loan only 7 days later! My son is slightly autistic which is why I am dealing with this as he becomes very stressed. Incidentally all the paperwork from Lending Stream he received (unfortunately he ignored it) but then the correspondence from TM was sent to him by email and he never received any of it. It turns out it went into his junk folder and got deleted which they have acknowledged could have happened! They are also refusing to provide us with a Notice of Assignment as they say they already sent it to my son via email and he can't have another one (despite it being lost in the spam folder).. It was only when they finally wrote by snail mail and said that they were taking him to court that we realised what was going on. Accordingly we immediately sent a recorded delivery letter asking for proof of the alleged debt, which crossed in the post with the issue of the County Court Claim form, however they have since sent me via email all the paperwork as we requested (except the NOA).

( Sorry for all the questions here in a slightly haphazard fashion - best to try get as much info as possible to work out best course of action )

Any chance you can do a pic of the agreements and default notices and send them to me or redact and post them on here please. ( email is admin@legalbeagles.info )

[GBExile]

It is worth noting that Perch Capital & TM are owned by the same people & pretty much act as one company

Oh & they scrape the bottom on the barrel. Hence "perch" a fish that is always feeding off of the bottom of streams & lakes.

They deliberately called the company that name.... You couldn't make it up.

I would go all the way with this one.

Oh & if you get an assignment notice prior to 15th Feb 2018 from the Lending Stream to Perch Capital then it is fake.

And following the debt in assignments notices from Lending Stream to whoever & to whoever again to Perch Capital is vital.

[BusyGran59]

First of all, a big thank you for your help so far and for giving me some hope about this. Amethyst, please may I send you the documents in pdf format as they were all sent to me by TM? If I forward the email from TM with all attachments to the admin@legalbeagles.info address, I assume I don't need to remove any of my son's personal info? Is it OK to acknowledge service via moneyclaim as it says on the response pack? If so I can do that today. If I do need to redact the documents from the pdf format I will need a bit of time to get that sorted. Please let me know.

[Amethyst]

Yes PDF is fine, and anything I need to post up here I'll redact heavily for you.

Yes you can do the acknowledgement of service via moneyclaim - just 'intend to defend in full'.

GBExile - the FCA are looking at Perch.

[BusyGran59]

Sending everything through shortly Amethyst. Thank you so much.

[Amethyst]

All received... it'll take a while to go through and I'll just make some notes on here as I go.

Agreement: Signed for (or on behalf of) Creditor:GAIN Credit LLC (trading as Lending Stream)
Date(s) of Signature(s) april-2018

contains prescribed terms.

Default notice fine ( contains precscribed statements, fca sheet and gives 14 clear days to remedy arrears.

Notice of Sums in Arrears fine.

[BusyGran59]

Acknowledgement of Service completed by me today via MCOL at 13.00 as "Litigation Friend" indicating we intend to defend in full.

[Amethyst]

Welll done

So we only really are left with assignment and the FCA authorisation issue.

GAIN/LS are authorised at the material times.

Asset ARE authorised. Perch are not.

The two loans in quick succession ( 7 days apart in April 2018 - 1st for 230 - 2nd for 150 ) could be an affordability complaint depending on his circumstances but the second wasn't taken to pay off the first (or used for such ).

He only made one payment to one of them.
There are very few additional charges applied.

the total of the two agreements to pay had he paid the instalments would have been £300 and £418.96 ( £718.96 ) - to have a court claim for not very much more than that is a big improvement on how the industry used to be ( would have run for years and turned in to thousands a few years back )

Defence wise then.... not a lot.

So the question is can Perch exercise rights under a consumer credit agreement by engaging an authorised firm to do so for them (can they rely on the S.55 FSMA 2000 exemption). ( you'd think that'd be an easy question to answer wouldn't you? nope - pt2537 anything definitive yet ? )

And is there evidence ( deed of assignment ?) of assignment from GAIN to PERCH, and was notice given?

And the non pleading of default/termination ? ( although DN has been provided and looks fine )

1. The RAO contains a new exclusion at Article 60I (inserted by the Regulated Activities (Amendment No. 2) Order 2013 - S.I. 2013 No. 1881 - as from 1 April 2014) under which a person is exempt from the requirement to hold a licence to exercise, or have the right to exercise, the lender's rights and duties under a regulated credit agreement where that person:
   • arranges for another person, who is an authorised person with permission to carry on an activity of that kind, to exercise or to have the right to exercise the lender's rights and duties under the agreement; or
   • exercises or has the right to exercise the lender's rights and duties under the agreement during a period of not more than one month beginning with the day on which any such arrangement comes to an end.
2. Further, under (new) Article 60J of the RAO, a person who is not an authorised person does not require a licence to exercise, or have the right to exercise, the lender's rights and duties under a regulated credit agreement if that person exercises or has the right to exercise the lender's rights and duties under the agreement pursuant to an agreement with an authorised person who has the permission to exercise, or have the right to exercise, the lender's right and duties under a regulated credit agreement.

Which I think covers it and we have no published case law otherwise

Feel that the default pleading part is easily rectified by amending pleadings ( PT may disagree there )

The Assignment issue is left.

[BusyGran59]

Thanks Amethyst. Do I need to do anything else today? Or just wait to hear further from you ? By the way TM Legal Services asked me to let them know when I had acknowledged service - do I need to let them know, surely the court will ? The reason given was that the court "takes a long time" to tell them anything and I may "want do discuss things further so as to avoid going to court" !