Very counter claim

[Ha1ha1]

Received a claim? Yes/No: YES
Issue Date: 5 DEC 2019
Have you Acknowledged the Claim?: NA
Total Amount Claimed : ( approximately please do NOT use EXACT figure given on the claim form, round up to next £100 or £1000) 6000
Claimant's Name: VERY
Solicitors Firm: IN HOUSE
Original Creditor: VERY
Original Debt (eg. Credit card/Loan/Overdraft) : CATALOGUE
Particulars of Claim: ( Please type out in full excluding names/account numbers/exact amounts ):
1) Mr. A has failed to repay credit provided to him by shop direct finance company limited, despite the deadline for such repayment having elapsed
2) The claimant opened a credit account with the defendant on 25th December 2009, and entered into a credit agreement with the defendant at the same time (the "agreement")

3) Between 2nd January 2010 and 8th August 2017 the claimant obtained a minimum of £6000 of credit from the defendant

3. Pursuant to the terms of the Agreement, the Clelrnant was required to make regular, mtnimum payments against the balance of the account.

4. On 24th January 2015. the Claimant failed the minimum required payment against the balance of the account pursuant to the terms of the Agreement. Thereafter. the Claimant continued to fail make the required minimum payment against the account.

5. Pursuant to Clause 19 of the Agreement, the Defendant ls permitted to demand the immediate repayment of the tult outstanding balance it the Claimant fails to make the mlnlmum payment by the required date.

6. In breach of the Agreement. the Claimant has failed to repay the credit obtained from the Defendant.

7. The Defendant therefore counter claims the remaining outstanding balance of the account of £6000

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): no
List any letters you have sent: NONE
​
Bit of a funny one, it's a counter claim from Very. Basically I had a PS4 from Very in 2013 and it was found to have a manufacturing fault. Got an independent report and tried a long time to get Very to refund it to no avail. So I decided to try once more this year and do letter before action, which they also said no to. So I took it to small claims, and they refunded it as a reduction to the balance I owe them and filed a counter claim to to the money I owe them. The debt at the time was owned by Lowell but Very recalled it last month. Is paying Lowell £45 a month as part of a DMP. Yeah. Apologies if this is in the wrong forum. Any advice would be appreciated.

[R0b]

Hi,

You say that Very recalled the debt from Lowell, but if Lowell purchased the debt it would have been assigned to them. If Very recalled the debt, it would have needed to be re-assigned back to them. I think it's crucial to know whether Lowell were simply acting as a debt collector on behalf of Very or whether they had actually purchased and therefore owned the debt.

Have you got evidence that this was the case - did Lowell or Very give you notice that the debt has been assigned back to Very?

[Ha1ha1]

Hi R0B thanks for your reply. I did not receive any notice. I found this out after I had rang Lowell to see who owns the debt. They notified me then that the debt had been closed on their part as it was recalled to Very. But no calls, no letters to my knowledge letting me know beforehand.

[Ha1ha1]

Just to add, Lowell did own the debt before it was recalled.

[R0b]

So I think there's a few questions that need to be answered and may or may not form part of your defence to the counterclaim.

1. What does clause 19 of the Agreement say with regards to demand for full payment of balance.

2. Was the contract ever terminated by Very (or possibly Lowell) as that might affect Very's right to claim under clause 19.

3. If the debt was legally assigned to Lowell and then back to Very, you should have been given notice of that assignment prior to the counterclaim. Legal assignments need to comply with s.136 of the Law of Property Act 1925 i.e. one of the conditions is to give notice in writing. Failing to comply means you are considered to be an equitable creditor and not a legal one. So the 'legal' right to sue would be down to Lowell and then Very joined as a second interested party.

4. Possible argument to claim an unfair relationship due to the way Very has exercised its rights (this falls under s.140A(1)(b) of the Consumer Credit Act 1974). There might be further arguments that Very is in breach of its regulatory obligations under FCA CONC rules, particularly around demanding a large sum of debt knowing that you can't afford it and/or were on a payment plan prior to the counterclaim.

Just so I am clear, this is not a claim in itself being brought by Very, it is a counterclaim to your claim about the PS4? I ask because there are different timeframes for filing a defence to a counterclaim on an existing claim going through the courts as opposed to a claim being issued by Very.

[pt2537]

ahhh they may have an issue here. Doyle confirms that the creditor must serve a default notice or notice under s98A before they can become entitled to terminate the agreement. It seems to me no default notice no right to counterclaim!!

[R0b]

pt2537 is a default notice required even if Very are claiming a contractual right to demand the accelerated amount where the contract has not been terminated?

[pt2537]

pt2537 is a default notice required even if Very are claiming a contractual right to demand the accelerated amount where the contract has not been terminated?

Yes, absolutely, the claim or should i say counter claim is based upon a breach of contract, it is clear that the contract cannot override the statute, the statue makes clear that before the creditor can become entitled by reason of breach to demand earlier repayment it must serve a default notice.

The Court of Appeal in Doyle seems to support this approach too

[R0b]

Thanks PT but just so I understand it correctly, are you suggesting two alternative lines or argument?

The first being that Very can only be entitled to demand an accelerated sum provided a default notice was given beforehand. The second relates to whether the agreement was terminated and if it was, then Very failed to comply with s.98A by not giving notice in writing.

In either case, there has been a repudiation by Very?

[pt2537]

Thanks PT but just so I understand it correctly, are you suggesting two alternative lines or argument?

The first being that Very can only be entitled to demand an accelerated sum provided a default notice was given beforehand. The second relates to whether the agreement was terminated and if it was, then Very failed to comply with s.98A by not giving notice in writing.

In either case, there has been a repudiation by Very?

No sorry just to clarify, s98A notice is required to terminate the agreement and demand repayment for any reason other than breach, s87 comes in where the creditor relies on breach, either or, it has to be one or the other notices depending on why the creditors is seeking to demand paytment

[Ha1ha1]

Hi, thank you guys for the help.

Yes, it is a counter claim by Very and it needs to be returned by the 23rd of December.

On my credit score it does show the account as satisfied? The account was defaulted in August 2015.

Now how do I write a defence based on all this :/

[pt2537]

Hi, thank you guys for the help.

Yes, it is a counter claim by Very and it needs to be returned by the 23rd of December.

On my credit score it does show the account as satisfied? The account was defaulted in August 2015.

Now how do I write a defence based on all this :/

That will need some very careful planning and drafting, sadly i am streched as it is time wise, im dealing with a number of court matters at the minute and i stop work in Friday to go and spend time with my family.

You will need to think about drafting the Reply to the Defence and the Defence to counterclaim otherwise they will get Default judgment

[R0b]

That will need some very careful planning and drafting, sadly i am streched as it is time wise, im dealing with a number of court matters at the minute and i stop work in Friday to go and spend time with my family.

You will need to think about drafting the Reply to the Defence and the Defence to counterclaim otherwise they will get Default judgment

The counterclaim appears to focus on a breach of contract and reliance on clause 19 of the agreement to accelarate payment but there is no mention of the agreement having terminated. Depending on whether clause 19 refers to termination, the defence should give focus around failure to serve default notice as a primary point?

HA1HA1, I think it's important to see and understand what clause 19 of the agreement says otherwise we are merely speculating.

[Ha1ha1]

Hi, once again, thank you for the replies. It is very much appreciated. If I am correct, this is clause 19.

We may demand immediate repayment of the full outstanding balance and/or terminate the agreement and/or suspend your right to use the account if:-

• 19. Termination and Repayment: either you or us may terminate this agreement. If you terminate the agreement, you must give at least 7 days written notice by contacting us at the address specified in clause 17 and you must immediately pay the full outstanding balance to us. If we terminate the agreement we will give you at least 2 months notice unless an event mentioned in this clause has occurred. You must repay the full outstanding balance to us on demand, subject to us giving you any statutory notice. The outstanding balance for all purposes of this agreement will include all sums due on the account (current balance) together with all amounts due for payment on your account at any time in the future.
• • you fail to pay the minimum payment by the due date;
  • you exceed your credit limit;
  • you become bankrupt, enter into a voluntary arrangement or make proposals for reduced payments;
  • you have provided any false or misleading information on which we have relied;
  • you breach any of the terms of this agreement in a way which we reasonably believe to be material;
  • we believe the account is being used fraudulently or for an illegal purpose.

[pt2537]

Hi, once again, thank you for the replies. It is very much appreciated. If I am correct, this is clause 19.

We may demand immediate repayment of the full outstanding balance and/or terminate the agreement and/or suspend your right to use the account if:-

• 19. Termination and Repayment: either you or us may terminate this agreement. If you terminate the agreement, you must give at least 7 days written notice by contacting us at the address specified in clause 17 and you must immediately pay the full outstanding balance to us. If we terminate the agreement we will give you at least 2 months notice unless an event mentioned in this clause has occurred. You must repay the full outstanding balance to us on demand, subject to us giving you any statutory notice. The outstanding balance for all purposes of this agreement will include all sums due on the account (current balance) together with all amounts due for payment on your account at any time in the future.
• • you fail to pay the minimum payment by the due date;
  • you exceed your credit limit;
  • you become bankrupt, enter into a voluntary arrangement or make proposals for reduced payments;
  • you have provided any false or misleading information on which we have relied;
  • you breach any of the terms of this agreement in a way which we reasonably believe to be material;
  • we believe the account is being used fraudulently or for an illegal purpose.

HAHAHA theyre fcuked