Court claim received, interesting background, would appreciate opinions....

[Decanus]

Hi all,

just received a court claim from Keynes Collections, on behalf of Barclaycard, today but this one has an interesting history. Back in 2008 I had a Goldfish card, then Barclays bought out Goldfish and I had a Barclays Goldfish card. Everything was fine, then in mid 2010 my card was declined when I tried to use it; no payments had ever been missed on it, within my credit limit etc.. Thought it a mistake, tried again a day or two later, again declined.
So I contacted Barclays, who informed me that the card was now repayment only, because of my conduct on a previous Barclaycard (I had run into trouble with a Barclaycard before, and that was on the back burner as they could not produce any of my agreement info). No prior letter, warning, nothing. I wasn't best pleased, made a formal complaint and refused to pay what would have been essentially a loan, at an interest rate of 17.9% (they refused to freeze interest)
Well, after a letter exchange in which they continually refused to address the problem (I was told their terms and conditions allowed them to do anything!) I told them I would not be paying anything further. A few demands came my way then it went quiet. I had letters from Mercers, Resolvecall,Calder Financial, Credit Solutions, Power2Contact, MKRR and Keynes (I know some of these are interconnected). I explained to each that I regarded this account as IN DISPUTE, due to the nature of the complaint, and that it should not have been passed on, and they tended to go away.
MKRR, in late 2011, claimed to have been assigned the debt by Barclays; I wrote to them and Barclays asking for proof of this, as I never received anything. Barclays never replied, and MKRR said they would look into it and get back to me. That was January 2012; in August 2012 I received a letter from Keynes threatening court action; sent a letter saying who are you, where are MKRR, prove you should be processing my data.
No reply. Then out of the blue, Keynes sent a letter beginning of Feb giving me 7 days to contact them to pay; I ignored it, and then today received the court claim from them
(phew!)

I would appreciate all questions and advice but can I ask:-

1. As my goldfish card was converted to a barclaycard, should they have blocked it te way they did?
2. Would Barclays t & c have superseded the Goldfish ones, even though those were the ones I agreed to?
3. I still am not in possession of any proof of assignment. Can they issue a court claim without this?
4. Were Barclays allowed to sell on the debt, assuming they did, even if it was in dispute?

Just to add to the excitement, the figure on the court claim includes several hundred pounds in interest charges on my account that were added many months on from my original claim, and is money I am trying to claim back from Barclays as unfair charges. Does this affect things any?

Thanks for reading this far, and any input is welcome!

[FlamingParrot]

Re: Court claim received, interesting background, would appreciate opinions....

You say the claim I'd from Keynes ON BEHALF of Barclaycard, that could be the reason you haven't had a Notice of Assignment, because the debt hasn't been sold to them. Unfortunately banks can do pretty much what they want: restrict you from using your card and changing the T&Cs as long as they send you an updated set. :rant: Debts can be sold regardless of them being disputed, in fact, even statute bared debts are sold on!

You don't say how much the outstanding balance is, if it's above the small claims threshold, you could get legal representation on a conditional fee agreement basis. You may consider contacting this firm who specialise in credit litigation -> http://www.watsonssolicitors.co.uk/contact.html Or PM PT2537 with a link to this thread - he works for that firm and has successfully defended a number of consumer credit cases :first: including this one -> http://www.bbc.co.uk/news/business-17670803 where the defendant is also a member here on LB (Plan B).

[Decanus]

Re: Court claim received, interesting background, would appreciate opinions....

You say the claim I'd from Keynes ON BEHALF of Barclaycard, that could be the reason you haven't had a Notice of Assignment, because the debt hasn't been sold to them. Unfortunately banks can do pretty much what they want: restrict you from using your card and changing the T&Cs as long as they send you an updated set. :rant: Debts can be sold regardless of them being disputed, in fact, even statute bared debts are sold on!

You don't say how much the outstanding balance is, if it's above the small claims threshold, you could get legal representation on a conditional fee agreement basis. You may consider contacting this firm who specialise in credit litigation -> http://www.watsonssolicitors.co.uk/contact.html Or PM PT2537 with a link to this thread - he works for that firm and has successfully defended a number of consumer credit cases :first: including this one -> http://www.bbc.co.uk/news/business-17670803 where the defendant is also a member here on LB (Plan B).

Thanks for the reply. The amount originally was for £3300, but they kept adding interest so the claim is for £4k. They do claim the debt was assigned to them, in that Barclays has sold it to them, but without paperwork I'm not sure how I can see that!

[Decanus]

Re: Court claim received, interesting background, would appreciate opinions....

Its been pointed out to me that there may be a problem their end with the default notice. The only default notice I ever received was from Mercers, and they state on it they are acting as 'agents' for Barclays; Its been pointed out that only the original creditor can issue a default notice as its their account.
Anyone have thoughts on this?

[FlamingParrot]

Re: Court claim received, interesting background, would appreciate opinions....

Its been pointed out to me that there may be a problem their end with the default notice. The only default notice I ever received was from Mercers, and they state on it they are acting as 'agents' for Barclays; Its been pointed out that only the original creditor can issue a default notice as its their account.
Anyone have thoughts on this?

Mercers are in-house Barcraps collectors and threat-monkeys as well as Calders, if you ever heard from that lot.

The DN could be defective if it doesn't give you enough time to remedy the breach or if it asks for the full amount as opposed to the arrears.

[Decanus]

Re: Court claim received, interesting background, would appreciate opinions....

Hi all, been busy dealing with a couple of things, turned my attention back to this particular one. I acknowledged receipt of POC and my intention to defend, and sent off the CPR 31.14 letter to MKRR, have proof of receipt. However, nothing back at all. No letter saying they need more time, no acknowledgement nothing at all. My next move, I'm guessing, is to send in the 'embarrassed defence' now (been just under 2 weeks) and try and direct the court to make them produce the claim.
Correct me if I am wrong, but as one of the DCA signed the POC to say what docs they would be relying on, should they not have physically had those docs to hand, as that is what they are relying on! If they don't have them, how can they rely on them? isn't that waste of court time?

Appreciate, as always, any input.

[FlamingParrot]

Re: Court claim received, interesting background, would appreciate opinions....

Hi all, been busy dealing with a couple of things, turned my attention back to this particular one. I acknowledged receipt of POC and my intention to defend, and sent off the CPR 31.14 letter to MKRR, have proof of receipt. However, nothing back at all. No letter saying they need more time, no acknowledgement nothing at all. My next move, I'm guessing, is to send in the 'embarrassed defence' now (been just under 2 weeks) and try and direct the court to make them produce the claim.
Correct me if I am wrong, but as one of the DCA signed the POC to say what docs they would be relying on, should they not have physically had those docs to hand, as that is what they are relying on! If they don't have them, how can they rely on them? isn't that waste of court time?
Appreciate, as always, any input.

I can do no better than to quote what PT2537 :first: has written elsewhere with regards to embarrassed defences:

If you file a holding defence instead of pleading your defence properly then you will be putting yourself at risk of an application from the Claimant to strike out your Defence or you may find the Court makes an order of its own motion and strikes you out.

It is important that if you can prepare a defence then you do so. It is also equally important in my view that you use the rules to secure the information that is necessary for you to be able to prepare a defence to the Claim.

Now just to qualify a point, if the claim is for money relating to for example a debt that you never had ie they got the wrong person, then you would put forward a simple bare denial as the debt isnt yours, however, if in 1993 you took out an MBNA card and you know it was assigned to 3 different companys over the time and now the Claimant is suing you for that debt, it is foolish in my view to say i dont know about this debt as you would be lying, if you want to however challenge the assignment say then you can say you admit entering into an agreement with MBNA or Barclays but you deny that it has been lawfully assigned to the current claimant, that is of course if you do not have proof of the assignment to the current claimant and genuinely havent been served with the correct papers etc. The single most important thing NOT TO DO is LIE, you must be honest and truthful.

The biggest problem that litigants in person seem to face is that they request a copy of say the agreement mentioned in the Claim form, and the Default notice and the Claimant fails to provide copies within the 7 days which rule 31.15 provides. In these circumstances it seems normal for people to file a "embarrassed Defence" which basically argues the Defendant is embarrassed at pleading because no documents have been provided and for leave to amend the defence later.

There is the option for the Defendant where the Claimant is in-breach of the provisions of CPR rule 31.14 & 31.15 to make an application on an N244 form. Now then, you should exhaust all options before launching an application, it should be last resort not first. Let the creditor have the 7 days he is allowed. On day 8 write to him pointing out the time is slipping and that you require disclosure, ask for an estimate of when the documents will be provided. Dont be frightened to give the creditor a time frame. Say "I require the agreement by 4pm on xxxxxx 2012 or i will have no choice but to make an application to the Court" it will assist if the application is necessary.

Do not allow the time for filing your defence to expire. If you have asked for an extension using CPR Rule 15.5 and that is about to expire, then an application to extend the time frame is important otherwise you will face default judgment and may be faced with a bar on your ability to file a defence.

The single most important thing here is not to ignore things, but do write letters to the creditor, keep proof of posting, and copies of the letters so that they can be exhibited to the application if you decide to make one. If you do apply, you will need to send a witness statement with the N244 exhibiting the letters and setting out the chain of events that have lead to this point. You will need to set out that you have had an extension under Rule 15.5 and that you need the Court to grant further leave to file a defence and would ask the Court to order the Claimant to provide the documents requested so that you can plead.It is good practice to send a draft order too with the application.

It is also good practice to invite the Claimant to consent to the application. My favoured option is to send a copy of the application and send a cover letter with a consent order inviting them to consent to the application to avoid the costs which could be incurred in attending and contesting the application.

[Decanus]

Re: Court claim received, interesting background, would appreciate opinions....

hmmm, that's changed things a little. In a past case with Restons, I used the 'embarrassed defence' and it worked well. After some backa nd forth the DJ threw it out for them not supplying the relevant docs. I assumed I could do the same here.
PT2537 obviously knows his stuff though.
Looks like my first thing to do is to write to MKRR once more, and try once more for disclosure before I submit the defence.

How and why though could the 'embarrassed' defence be struck out? in my case, I never received any notice of assignment (which I requested from them a long time before this went to court and never received ), and the default notice is from mercers not barclays (I want to see if the one they supply matches), plus the agreement was never sent to me. I wouldn't be arguing that the account isn't mine, but that to defend myself against their claim (and MKRR's right to collect said debt) I need to see these things, and without them I really am 'embarrassed'
What is the point of court protocols if they are not followed, a al CPR requests?