Advice please - court claim received

[mystery1]

Re: Advice please - court claim received

Does the notice of assignment have any dates on it ?

When exactly was the last payment ?

M1

[flinko]

Re: Advice please - court claim received

Noa is dated June 2011
Statement says that last payment was sept 2009

[mystery1]

Re: Advice please - court claim received

Is there an actual date for the assignment or just the date of the notice ?

M1

[flinko]

Re: Advice please - court claim received

Is there an actual date for the assignment or just the date of the notice ?

M1

It says the assignment is effective 10 may 2011

Last payment was May 2009 not sept as I said earlier

[labman]

Re: Advice please - court claim received

Hi Flinco,

I've read the thread and you've had some great advice. What we don't know is your personal situation. You say you have some other debts which are complex - are you able to provide details?

Are you employed? Do you have disposable income whereby you could make a sensible offer to repay the debt in installments? Have you completed an Income / Expenditure form to ascertain whether or not you have disposable income?

I have some experience of Shoosmiths, and my experience is that they are very straight down the line, and pretty tough. However, if you can come up with a sensible repayment plan to repay this debt before it goes to court, they will usually take the following action:

1. They tell you that regardless of anything you do, they will pursue a CCJ against you.

2. If you have made a sensible offer, they will accept that repayment post judgment. This means you get a CCJ, but the debt is repaid at an affordable rate.

In order to decide the best way forward for you, it is essential to complete a good income and expenditure form. If you pm me with an email address, I can send you one which will be acceptable to the solicitors and to the court.

Without knowing your detailed personal circumstances, it is impossible to help you regarding the way forward now. If you could expand on these, then we can help you further. I would still suggest strongly that you pm me with an email address so we can sort out a decent Income and Expenditure with you. However, as this would have to be done via private message / email, I'd prefer it if one of the Site Team could confirm on this thread that it is all right for you to deal with me in this way just over the I&E. More general details of your finances can be posted in public then, without you having to bear your soul to the whole world.

[mystery1]

Re: Advice please - court claim received

Does the agreement have a clause which allows for a method of service of an assignment which supercedes the law of property act ?

M1

[flinko]

Re: Advice please - court claim received

Does the agreement have a clause which allows for a method of service of an assignment which supercedes the law of property act ?

M1

Not that I can see, anything specific I should look for?
All I see in the agreement is the terms (agreement number, interest rate, installment details etc), the CCA 1974 stuff and a direct debit form

It does reference the following at the payment terms part (pay on 2nd of the month etc) - "the amount you have to pay may be reduced by us in accordance with clause 10 of the Personal Loan Agreement Terms and Conditions and will (or may) increase if you choose to make any of the changes referred to in the clauses 6,7,8 or 9 of the Personal Loan Agreement Terms and Conditions.

I don't know what these Personal Loan Agreement Terms and Conditions are but they aren't attached, or are they generic?

[mystery1]

Re: Advice please - court claim received

If the agreement is silent about it then ,as above, the law of property act does apply and if they can't prove they sent the registered NOA then they have a problem if you say you never got a NOA.

Is the amount on the NOA accurate ? Check past statements to get such information from around the correct date.

M1

[flinko]

Re: Advice please - court claim received

If the agreement is silent about it then ,as above, the law of property act does apply and if they can't prove they sent the registered NOA then they have a problem if you say you never got a NOA.

Is the amount on the NOA accurate ? Check past statements to get such information from around the correct date.

M1

No amount is stated on the NoA - just the fact that the assignor has assigned all of its respective rights, title and interest in respect to the account to the assignee.

M1 - take a look at the skeleton defence in post#109, most of the argument is based around the NoA not being served correctly. Not sure about these PLA T&Cs that they refer to though - are they not valid if they cannot locate/present them?

[flinko]

Re: Advice please - court claim received

Another letter received stating that in the circumstances they believe I have no prospect of success etc and that they again invite me to withdraw and confirm if I want to file an amended defence and when will I be in a position to do so. They want to know by Thursday or will instruct an agent to attend and seek to obtain costs etc

[mystery1]

Re: Advice please - court claim received

Ok. The notice of assignment appears fine except for service. You must get it or it has no effect (unless it was undelivered and unreturned if sent registered).

That has little to do with your application though. Your application is because you wanted information about the debt.

Now, in theory, you should contest the right of action of Britannica recoveries because the lack of service means they have no right to sue. This should be before your cpr 31.14 application as that'd then be irrelevant.

Firstly though, i would agree to withdraw your application on the basis it has succeeded. To do this i would ask Britannica recoveries to agree to a consent order with them paying your costs of the application(s) and once done then look at a defence.

Consent order should include :-

Your costs,

Application withdrawal,

New defence date.

M1

[flinko]

Re: Advice please - court claim received

Firstly though, i would agree to withdraw your application on the basis it has succeeded. To do this i would ask Britannica recoveries to agree to a consent order with them paying your costs of the application(s) and once done then look at a defence.

Consent order should include :-

Your costs,

Application withdrawal,

New defence date.

M1

Ok, let's get this done 1st - Am I right in saying I need to email the claimant by saying I agree to withdraw on the basis that the claimant have now fulfilled my request and thus my application is as far as I am concerned successful. Therefore are they in agreement to a consent order with application costs payable by them

Do I then write/phone the court? I guess my costs are £80 (application fee?), along with statement that I wish to withdraw and do I request a new date or is this done automatically? (I take it this then moves into a holding defence?)

[mystery1]

Re: Advice please - court claim received

Don't forget a consent order will cost £45 plus postage paper time etc for the unless order.

21 days for a defence should be ok (try 28 if you feel cheeky) which will form part of the consent order as will the withdrawal of the unless order application.

Be really cheeky and ask them to do it since it was their procrastination that caused this.

Just makes sure you read it and are happy with it !

M1

[flinko]

Re: Advice please - court claim received

Thanks M1, just sent you PM with a draft, can you take a look please and offer your thoughts.

[flinko]

Re: Advice please - court claim received

ok, agreement to withdraw has been sent, time to wait for a response