Court claim for overdraft

[FlamingParrot]

Re: Court claim for overdraft

Reply to Reston.

Sir /madam

I refer to Your letter dated........... in response to my request made under the provisions of Civil Procedure Rule 31.14 foe inspection of the documents mentioned in the particulars of Claim No..............:

I am sure you are quite aware that CPR31.14 remains applicable to this claim until it is actually allocated to the small claims track therefore I will expect too receive the documents by return of post.

Restons is also reminded that it should have in its possession the documents to support the claim prior to issuing a claim.

Signed for post pawlik.

nem

From what I read above, they didn't argue about small claims, just that pawlik would have been provided with contractual terms, it was actually me who mentioned that they most often argue that Part 31 of the CPR does not apply to small claims. Perhaps pawlik would want to clarify whether they mentioned that fact on their letter. :mmph:

[pawlik]

Re: Court claim for overdraft

From what I read above, they didn't argue about small claims, just that Terry would have been provided with contractual terms, it was actually me who mentioned that they most often argue that Part 31 of the CPR does not apply to small claims. Perhaps Terry would want to clarify whether they mentioned that fact on their letter. :mmph:

Here is the letter verbatim:

We would point out that the claim was issued via the county court business centre which is a procedure specifically provided for in the CPR. The procedure only allows a claimant to insert brief details of the claim and does not allow for the attachment of any enclosures. Paragraph 5.2A of Practice Direction 7E specifically states "the requirements in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particular of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separate in accordance with paragraph 5.2 of this practice direction".

We would also remind you that CPR 31.14 states:

"a party may inspect a document mentioned in -

a)a statement of case
b) a witness statement
c) a witness summary; or
d) an affidavit

You would have been provided a copy of the contractual Terms and Conditions at the time the account was opened and hence we see no reason why why you require an additional copy.

Although your letter states that you require the requested documents in order to file a Defence/Counterclaim, we would point out that the POC contains sufficient information in order for you to understand what the claim relates to:

a) the date the account was opened
b) the account number
c) the outstanding balance
d) the name of the original creditor; and
e) the fact the account has been assigned to the claimant when it was assigned.

I requested a copy of the contract and copy of the default notice letter as mentioned in the POC which have not been provided

[FlamingParrot]

Re: Court claim for overdraft

Here is the letter verbatim:

We would point out that the claim was issued via the county court business centre which is a procedure specifically provided for in the CPR. The procedure only allows a claimant to insert brief details of the claim and does not allow for the attachment of any enclosures. Paragraph 5.2A of Practice Direction 7E specifically states "the requirements in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particular of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separate in accordance with paragraph 5.2 of this practice direction".

This is correct, when claims are issued electronically through MCOL there is no requirement to attach documents, however, we are not arguing about them not being attached, that's why you asked for them.

We would also remind you that CPR 31.14 states:

"a party may inspect a document mentioned in -

a)a statement of case
b) a witness statement
c) a witness summary; or
d) an affidavit

You would have been provided a copy of the contractual Terms and Conditions at the time the account was opened and hence we see no reason why why you require an additional copy.

This is where they are wrong, their quote of rule 31.14 (which I made blue), is word for word, however, their interpretation (in purple), has nothing to do with the wording of the rule. You have the right to inspect a document mentioned in a statement of case, full stop. Note how the rule doesn't say anything about whether you were provided with a copy when the account was opened.

Although your letter states that you require the requested documents in order to file a Defence/Counterclaim, we would point out that the POC contains sufficient information in order for you to understand what the claim relates to:

a) the date the account was opened
b) the account number
c) the outstanding balance
d) the name of the original creditor; and
e) the fact the account has been assigned to the claimant when it was assigned.

I requested a copy of the contract and copy of the default notice letter as mentioned in the POC which have not been provided

There is absolutely no mention of potential allocation to small claims so if I was writing to them, I'd leave that bit out, I wouldn't want to provide them with the only excuse they've not actually thought of in their letter.

I'd just say that rule 31.14 states you have the right to inspect the documents mentioned in their statement of case which is their particulars of claim, irrespectively of whether you were provided with a copy of the terms and conditions when you opened the account. Furthermore, they would have no way of knowing what you were supplied with at the time and they should have had the documents in their possession before issuing a claim even if there is no requirement to attach them to the claim form.

[pawlik]

Re: Court claim for overdraft

This is correct, when claims are issued electronically through MCOL there is no requirement to attach documents, however, we are not arguing about them not being attached, that's why you asked for them.

This is where they are wrong, their quote of rule 31.14 (which I made blue), is word for word, however, their interpretation (in purple), has nothing to do with the wording of the rule. You have the right to inspect a document mentioned in a statement of case, full stop. Note how the rule doesn't say anything about whether you were provided with a copy when the account was opened.
There is absolutely no mention of potential allocation to small claims so if I was writing to them, I'd leave that bit out, I wouldn't want to provide them with the only excuse they've not actually thought of in their letter.

I'd just say that rule 31.14 states you have the right to inspect the documents mentioned in their statement of case which is their particulars of claim, irrespectively of whether you were provided with a copy of the terms and conditions when you opened the account. Furthermore, they would have no way of knowing what you were supplied with at the time and they should have had the documents in their possession before issuing a claim even if there is no requirement to attach them to the claim form.

Thanks for the reply Flaming Parrot. I will post letter requesting copies of all documents in the Particular of Claim tomorrow. 😀

I need to start working on my defence now. Is there any guidance or template letters that can be used? 😊

[FlamingParrot]

Re: Court claim for overdraft

Thanks for the reply Flaming Parrot. I will post letter requesting copies of all documents in the Particular of Claim tomorrow. 

I need to start working on my defence now. Is there any guidance or template letters that can be used? 

There are example defences based around not having supplied you with any documents here: http://www.legalbeagles.info/forums/...t-Court-Claims

They need amending to suit your circumstances, i.e. for an overdraft you'd leave out the bits about sending a CCA request. Do post up when you start adapting it. :typing:

[pawlik]

Re: Court claim for overdraft

Hello

I still have not had a response from the 2nd letter under CPR 31.14 requesting documents.

I am going to start writing my defence over the weekend and wanted to know if I should put historical information from the original creditor? Basically I was in financial difficulty as i was made redundant and a debt charity asked for interest and bank charges to be frozen. HSBC ignored this correspondence and charges/interest took the account over the agreed overdraft limit and account was then sold to a debt collector.



1. I am the defendant of this case.
2. HSBC account was in dispute due to continued interest and charges despite being made aware of financial hardship
3 I received correspondence from Cabot that they have purchased account from HSBC
4. I did a Subject Access Request under Data Protection Act 1998 with £10 fee from HSBC. Copy of contract and Letter of default notice could not be provided.
5. Received a county court claim form which was acknowledged
6. CPR 31.14 request sent using recorded delivery. Restons have not to provide the requested documents for me to be able to defend

[nemesis45]

Re: Court claim for overdraft

Hello

I still have not had a response from the 2nd letter under CPR 31.14 requesting documents.

I am going to start writing my defence over the weekend and wanted to know if I should put historical information from the original creditor? Basically I was in financial difficulty as i was made redundant and a debt charity asked for interest and bank charges to be frozen. HSBC ignored this correspondence and charges/interest took the account over the agreed overdraft limit and account was then sold to a debt collector.



1. I am the defendant of this case.
2. HSBC account was in dispute due to continued interest and charges despite being made aware of financial hardship
3 I received correspondence from Cabot that they have purchased account from HSBC
4. I did a Subject Access Request under Data Protection Act 1998 with £10 fee from HSBC. Copy of contract and Letter of default notice could not be provided.
5. Received a county court claim form which was acknowledged
6. CPR 31.14 request sent using recorded delivery. Restons have not to provide the requested documents for me to be able to defend

1. Non compliance with parts of a SAR will not help your defence.

Terry make it easier for yourself take a look at some other threads with defences it will give you a far better idea of wording and format.

Make a draft defence and post it here then someone can go through it with you.

nem

[FlamingParrot]

Re: Court claim for overdraft

Hello

I still have not had a response from the 2nd letter under CPR 31.14 requesting documents.

I am going to start writing my defence over the weekend and wanted to know if I should put historical information from the original creditor? Basically I was in financial difficulty as i was made redundant and a debt charity asked for interest and bank charges to be frozen. HSBC ignored this correspondence and charges/interest took the account over the agreed overdraft limit and account was then sold to a debt collector.

You may want to look at this post and see if anything could apply to you: http://www.legalbeagles.info/forums/...908#post500908

[pawlik]

Re: Court claim for overdraft

Hi Guys, Apologies but I am crap at this. :tinysmile_cry_t: This is what I have managed to write for my defence can you please provide me with some guidance.

CASE SUMMARY- Defence

1. I am the Defendant in this case and Litigant in Person.

2 Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3. The Claim is a Bank account with an overdraft

4. On XXXXX the Claimant submitted a claim to Northampton County Court stating their particulars of claim.

5. The claim was acknowledgement on XXXXX using the MCOL website.

6. The Claimants statement of case states that the account was assigned from HSBC to Cabot on April 2014. The Defendant does not recall receiving notice of this assignment. The Original creditor confirmed that they did not issue a Notice of Assignment.

7. On XXXX I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Restons. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment using recorded delivery.

6. Restons has not sent any of the documents requested in CPR 31.14 letter

7. I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5) using recorded delivery, but they have declined to respond.


8. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.


9. It is denied that default notice/Termination notice was received from HSBC. A copy of the Default Notice and Certified Copies of how this was served upon the Defendant.


10. A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was served upon the Defendant as the original creditor have denied sending this information.



11. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed..

Statement of Truth

Dated

Signed

[judgemental24]

Re: Court claim for overdraft

Just sticking my nose in on this one and any one give a definitive answer

I was under the impression overdrafts are classed as a running credit account. As such they will be covered under Section 10 CCA 1974

Even with a part five exemption from the act the bank customer has to be given a notice of contractual terms such as amount of credit, APR and cancellation rights

http://www.bailii.org/ew/cases/EWCA/Civ/2005/473.html

[Amethyst]

Re: Court claim for overdraft

Have you looked into disputing the amount owed as made up of bank charges ? Possibly have a look into Foster Burnell v Lloyds and include a paragraph about how the terms that allowed the bank to keep charging you when you were in financial difficulty and ramp up the debt until they chose to close your account were unfair under UTCCR ?

[pawlik]

Re: Court claim for overdraft

Have you looked into disputing the amount owed as made up of bank charges ? Possibly have a look into Foster Burnell v Lloyds and include a paragraph about how the terms that allowed the bank to keep charging you when you were in financial difficulty and ramp up the debt until they chose to close your account were unfair under UTCCR ?

I have recently made a complaint to the original creditor and FSA regarding the charges. Is it worth mentioning the charges in my defence?
The defence is due on the 18th. Do I need to send a copy of the letters to the court from Reston's by post? Or the OC confirming that they did not send NOA?

[judgemental24]

Re: Court claim for overdraft

I have found myself the notice of assignment from the OC is not relevant

In my case i always received that notice of assignment and a welcome letter from a debt collection agency in the same envelope. All that is required is that you have been officially notified of the assignment. That is either by the OC or DCA and acknowledged in some way. That can be by a letter of phone call

Wait for more replies though

[pawlik]

Re: Court claim for overdraft

I have found myself the notice of assignment from the OC is not relevant

In my case i always received that notice of assignment and a welcome letter from a debt collection agency in the same envelope. All that is required is that you have been officially notified of the assignment. That is either by the OC or DCA and acknowledged in some way. That can be by a letter of phone call

Wait for more replies though

What about default notice? OC cannot provide a copy.

[nemesis45]

Re: Court claim for overdraft

From what I read above, they didn't argue about small claims, just that pawlik would have been provided with contractual terms, it was actually me who mentioned that they most often argue that Part 31 of the CPR does not apply to small claims. Perhaps pawlik would want to clarify whether they mentioned that fact on their letter. :mmph:

Very odd??