County court Claim received from Motormile finance re quick quid loan

[charitynjw]

Re: County court Claim received from Motormile finance re quick quid loan

Why put Without Pr'reejudice on the letter. Would this not mean you could not produce it in court?

Quite right, ODC. (That'll learn me to be more careful posting at 4.30 in the morning! )

I was thinking re a 'Calderbank', but in the sober light of morning, as long as you're not acknowledging the debt, a straight-forward 'prove-it letter is the way forward.

[FlamingParrot]

Re: County court Claim received from Motormile finance re quick quid loan

Hi nods, & welcome to Legal Beagles.

If you have received a County Court claim, as CC implies in post #4, you must acknowledge it within the timeframe. (14 days from receipt of the particulars of the claim)

Personally, during the 14 days 'grace', I would submit a holding defense, at the same time sending a 'Without Prejudice' letter to the named claimant requesting proof that they are the legitimate owner of the debt, stating that, due to the urgency imposed by the court's time limits, their most expeditious attention to this is vital.

I would like to refer you to what PT2537 :yo: has written elsewhere with regards to holding defences:

The Whitebook has a very helpful piece on holding Defences. It states

Quote:

15.5.3 Holding defence A defendant cannot legitimately obtain more time for preparing their defence by filing the so-called “holding defence” such as “I deny this debt: full defence to follow”. Such a defence does not comply with Pt 16 (contents of defence). A defence which consists of a bare denial may be struck out under r.3.4 (see Practice Direction supplementing r.3.4 , para.1.6, see above para.3PD.1). Indeed on the filing of such a defence a court officer may refer it to a judge and the court may strike it out on its own initiative (see rr.3.2 and 3.3 ).

So 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.

Ensure that you are within all time limits. (Golden Rule - always get proof of postage)
An example of a 'prove it' letter can be found at post #4 in this thread http://www.legalbeagles.info/forums/...ing-with-DCA-s (with thanks to Curleyben, the author)

As court papers have already been received, it may be better to send a CPR 31.14 request for any documents mentioned on the Particulars of Claim, and/or a CPR Part 18 request for information if applicable.

In my opinion it would be unwise to rely on the absence of a notice of assignment, as they could either turn up at court with a copy of same, and/or convince the judge that it is within their business model to routinely send these out.

It would then fall on you to prove that you had not received it.

I fully agree, they are not sent by recorded delivery.

[CleverClogs]

Re: County court Claim received from Motormile finance re quick quid loan

I fully agree, they [Notices of Assignment] are not sent by recorded delivery.

That is because, on the judges' home planet, nothing is ever mislaid in the post.

[nods]

Re: County court Claim received from Motormile finance re quick quid loan

Thanks for all the useful info. I'm a bit over whelmed now.

So let me get this right, the order of things should be?

1. Return the claim for ticking the box that sais I dispute all of the claim. There is also a box that sais I can request up to 28 days to prepare my defense. I assume I should tick this. What should I write in the defense description box?

2. Send MMF a prove it letter.

3. Wait and see what they send back???

Many thanks.

Nods

[CleverClogs]

Re: County court Claim received from Motormile finance re quick quid loan

Thanks for all the useful info. I'm a bit over whelmed now.

So let's try to help matters.

Free legal advice/help may usually be obtained from your local Law Centre (link) or Citizens' Advice Bureau (link)

2. Send MMF a prove it letter.

Only if you want them to faff around. As FlamingParrot wrote:

As court papers have already been received, it may be better to send a CPR 31.14 request for any documents mentioned on the Particulars of Claim, and/or a CPR Part 18 request for information if applicable.

Someone should be along shortly to help with this.

3. Wait and see what they send back???

If you just send them a "prove it" letter, the likelihood of them providing the documents in time for an effective defence is only slightly greater than that of Accrington Stanley winning the FA Cup for three years in succession.

[Guest]

Re: County court Claim received from Motormile finance re quick quid loan

If you know nothing about this debt, I see no harm in just saying so.

"I have no knowledge of any debt owed to the claimant."

[nods]

Re: County court Claim received from Motormile finance re quick quid loan

If you know nothing about this debt, I see no harm in just saying so.

"I have no knowledge of any debt owed to the claimant."

What about if in the defense section of the form:

I have no knowledge of any debt owed to the claimant and have asked the claimant to prove the debt by providing the following.

1. True copy of original signed executed credit agreement
2. FULL Statement of account
3. Copy of the executed deed of assignment from (original creditor) and (DCA)

I can also request 28 days to put together a defense. And send the prove it letter to the claimant.

My problem is getting all of the advice needed to defend is likely to take more than 14 days, If the claimant can't prove the debt surely they have no case.

Many thanks.

[charitynjw]

Re: County court Claim received from Motormile finance re quick quid loan

For further cogitation.

'Small Claims' is governed by CPR 27. - http://www.justice.gov.uk/courts/pro...l/rules/part27

Re: CPR 27.2, CPR 31 (disclosure & inspection) is not applicable.
Apparently, you ask just the other party to disclose, or allow you to inspect.
Should they prove to be recalcitrant, you respectfully ask the court to make them play ball.

Re: Assignment of the debt.
The Law of Property Act 1925 - http://www.legislation.gov.uk/ukpga/Geo5/15-16/20
As far as I can see from the above posts, there is nothing to indicate that MM are the legal title-holders of this alleged debt.
So a 'prove-it' is valid enough.
At the same time (in the same letter to them, possibly), a request for a copy of all the documents which they are going to rely on in court.
(Case Management should do this anyway via Standard Directions, but no harm asking in advance).

Most importantly, acknowledge the claim by returning the acknowledgement form.
I'm thinking "neither admitted or denied in the absence of, amongst other things, proof of the claimant's legal right to the title of the alleged debt. The respondent has requested from the claimant disclosure of these details, plus other supporting documentation."
I think that will satisfy Practice Direction 16.5(1)(b). - & pt2537, I hope! :noidea:

Re the Notice of Assignment, the Law of Property Act 1925 s196(4) says

Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

Registered post is no longer in existence, but I would have thought that some form of proof of postage for the NoA would be required.

& remember to get proof of postage yourself.

Could you guys pick this to pieces now!

[CleverClogs]

Re: County court Claim received from Motormile finance re quick quid loan

Re the Notice of Assignment, the Law of Property Act 1925 s196(4) says

Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

Registered post is no longer in existence, but I would have thought that some form of proof of postage for the NoA would be required.

The equivalent service to Registered Post - where every change of custody was recorded - is now Special Delivery.

[nods]

Re: County court Claim received from Motormile finance re quick quid loan

Ok so I will send the claim form back tomorrow but need to fill in the defense section. will this do the job?

[QUOTE]I wish to defend this legal action because I have no knowledge of the debt and don’t believe the claimant is legally entitled to ask the court to issue a junction against me.
I have asked the claimant to provide me with the following:
1. True copy of original signed executed credit agreement
2. FULL Statement of account
3. Copy of the executed deed of assignment from (original creditor) and (DCA)
4. A fair processing notice.
5. Copies of all the documents which you are going to rely on in court.

I would also like to ask the court for 28 days to prepare my defense.
Yours faithfully

Enclosed copies of my correspondence with the claimant[QUOTE]

And can i just use this standard prove it letter.

[QUOTE]
CLAIM NUMBER: xxxxxxxxx
YOUR REF: xxxxxxx
To whom it may concern,
I DO NOT ACKNOWLEDGE OR KNOW OF ANY DEBT TO YOUR COMPANY
Take note at this stage, I intend to be both vigorously defended and contest the legal actions you have taken against me regarding the above account.


I request that you send me a true copy of this credit agreement.

This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974, and I am entitled to receive a copy of my credit agreement on request.

Your obligation also extends to providing me with a statement of account. I enclose a £1 postal order, which represents payment of the statutory fee payable under the Consumer Credit Act. I understand that a copy of my credit agreement should be supplied within 12 working days from the date of this letter.

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

Also, since you are a Debt Collection Agency, I would also ask that you supply a signed true copy of the executed deed of assignment for the above referenced agreement. This is an obligation, whether you are the original creditor or not, under section 189 of the Consumer Credit Act 1974.

For the sake of clarity, may I also draw your attention to the following:
Consumer Credit Act 1974 s.175
Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under the regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

In summary, I DO NOT ACKNOWLEDGE THIS DEBT AND THEREFORE REQUIRE YOU TO SUBSTANTIATE THIS BY PROVIDING THE FOLLOWING DOCUMENTATION BEFORE I CORRESPOND FURTHER :

1. True copy of original signed executed credit agreement
2. FULL Statement of account
3. Copy of the executed deed of assignment from (original creditor) and (DCA)
4. A fair processing notice.
5. Copies of all the documents which you are going to rely on in court.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.


Further to the above, please ensure that any contact by yourselves is made in writing only to the above address. Telephone calls and personal visits will not be accepted and viewed as harassment.
I look forward to hearing from you within the statutory time limit.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully
[QUOTE]

[Guest]

Re: County court Claim received from Motormile finance re quick quid loan

IMHO

He is going through small claims, he is not a solicitor, all the judge will require is a statement that he knows nothing about the debt.

The bit about the criminal offence for none production of the 78 request needs removing, It must be an old template because the criminal element has not been effective since 2008(removed by CPUTR section 19-20).

[charitynjw]

Re: County court Claim received from Motormile finance re quick quid loan

IMHO

He is going through small claims, he is not a solicitor, all the judge will require is a statement that he knows nothing about the debt.

The bit about the criminal offence for none production of the 78 request needs removing, It must be an old template because the criminal element has not been effective since 2008(removed by CCA 2006).

Ok as long as it is not just a bare denial.
The defense can be struck out for that.

[Guest]

Re: County court Claim received from Motormile finance re quick quid loan

Ok as long as it is not just a bare denial.
The defense can be struck out for that.

No I think the defense can be struck out if the defendant says that he is holding any action whilst he prepares his defense, that is a completely different thing, the fact that he is unaware of any debt is his defense.

If this were not the case everyone who goes through the small claim would have to be a solicitor and there would be no such thing as a LIP.

[nods]

Re: County court Claim received from Motormile finance re quick quid loan

No I think the defense can be struck out if the defendant says that he is holding any action whilst he prepares his defense, that is a completely different thing, the fact that he is unaware of any debt is his defense.

If this were not the case everyone who goes through the small claim would have to be a solicitor and there would be no such thing as a LIP.

So If I remove "Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities." Will my reply be ok?

[nods]

Re: County court Claim received from Motormile finance re quick quid loan

Sorry for the delayed response. I replied to the claimant and the court with the prove it letter above and got a response from the claimant saying they will look into my request, the court wrote to me saying the claim will be stayed. I haven't heard anything from the claimant since.