TIM vs ARROW/RESTONS (Need urgent help with defence)

[warwick65]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Hi TIM

I just want to try and calm your fears about bailiffs . There would be a long way to go before that could happen

The first if is If you get a CCJ

Then so long as you engage with the creditor and make an offer of payment ( I would start low seeing as you are on JSA say £1 a month- you can always go up) which they accept that will deal with it. If they refuse the offer you can apply to the court to set a repayment schedule , again as you are on JSA you should get fee remission and if the income and expenditure is reasonable I think a judge would accept it

Just one question, do you won your own house or have other assets ?

[TIM50]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Thanks for the responses.

Yes, I did at one point also have a HSBC credit card, but as far as I am aware, that had a 0 balance, so unless I am incorrect on that, then it should be just the overdraft that is being claimed for. We are renting our house, and don't really anything which could be considered a decent asset. We have a C-Max, which is 12 years old, a reasonable TV, but about 3 years old or so, but not really much else of value. Due to relocating back to the UK last year, and not having the best credit, we were left with no option but to pay the rent in advance, and thankfully we were able to pay the 6 months in advance, and also buy some used furniture, but that left us without any savings.

I will try to put together a defence today, using the template at the top of the forum.

We are currently also claiming housing benefit, which is helping a bit due to the rent being paid in advance (we have checked this is OK, and have done the same in the past). Even with the extra we are receiving from housing benefit,it is still very much a struggle, mainly due to there being so many household things we don't have and need to gradually buy.

[TIM50]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Ok, here is the defence as it is so far. I have left the text I have amended/added in black bold text for now. I have also added some questions/comments in red. As you will probably appreciate, I am not at all familiar with this kind of thing!


1: I received the claim #Claim Number from the Northampton County Court on 19th June 2017.

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

3: This claim appears to be for an [ Overdraft Not sure what to put here] agreement regulated under the Consumer Credit Act 1974.
4: [It is admitted/denied] that the Defendant has [previously] entered into [an agreement/agreements] with [Original Creditor /Claimant] for provision of credit.
4: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

[5. The particulars of claim fail to state when the agreement was entered into.

[Claim form mentions that agreement was entered into on or about April 04th 2008, but this probably doesn’t reflect when the overdraft was taken out, or whether it was renewed afterwards ]

6. The Claimants statement of case states that the account was assigned from HSBC to Arrow Global on February 18th 2016. The Defendant does not recall receiving notice of this assignment.

7. It is denied that HSBC served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
[Should this paragraph remain included?]

8: On the 1st June 2017I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Restons Solicitors. I requested the Claimant provide copies of the Contract along with any relevant terms and conditions, as well as a copy of any Notices and Deeds of Assignment.
[I didn’t ask for a default notice due to it being for an overdraft, should I have done?]

9. Restons Solicitors has not sent any of these documents to me.

10. On the 1st June 2017 I sent a formal request for a copy of the original agreement to Arrow Global pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.
[I left this paragraph in due to not receiving anything back from Restons as yet to advise claim is for an overdraft. A copy of the credit agreement was sent to Arrow Global]

11. The Claimant has failed to comply with [s77 (1) / s 78 (1)]Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.
[Should this paragraph be removed?]

11.5 There exists the possibility that an overdraft maybe involved in this claim, and as such, that charges may have been added due to an unfair relationship. However, without further information from the claimant, which has been requested and not provided, I am unable to plead my case.
[Paragraph added by me]

[12: 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), but they have declined.]
[For this paragraph, In the CPR 3.14 letter to Reston Solicitors, there is a paragraph asking for additional time, but Restons have not written to me with a response, but they haven’t ‘declined’ the request as such]

13. 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.

14. 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.

15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

16. It is denied that the Claimant is entitled to the relief as claimed or at all.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.

[TIM50]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

*duplicate post*

[warwick65]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

[MENTION=5553]charitynjw[/MENTION] [MENTION=6]Amethyst[/MENTION]

All I would add id that under para 6 you should be adding that you put the claimant to strict proof a notice of assignment was sent
Then add another paragraph saying something like
'The claimant is put to strict proof they have the right to bring the claim by disclosing the deed of assignment'

Remember, you can always change your mind before court and try to arrange a payment plan but I wouldn't do anything just yet

[Amethyst]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Howdy... going through now,

3: This claim appears to be for an [ Overdraft Not sure what to put here] agreement regulated under the Consumer Credit Act 1974.

Nothing. --> This claim appears to be for an agreement regulated under the Consumer Credit Act 1974. The original creditor is stated as being HSBC.


4: [It is admitted/denied] that the Defendant has [previously] entered into [an agreement/agreements] with [Original Creditor /Claimant] for provision of credit.

[5. The particulars of claim fail to state when the agreement was entered into.

[Claim form mentions that agreement was entered into on or about April 04th 2008, but this probably doesn’t reflect when the overdraft was taken out, or whether it was renewed afterwards ]

Just leave that paragraph out

6. The Claimants statement of case states that the account was assigned from HSBC to Arrow Global on February 18th 2016. The Defendant does not recall receiving notice of this assignment.

As Warwick says add '''The claimant is put to strict proof they have the right to bring the claim by disclosing the deed of assignment''

7. It is denied that HSBC served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
[Should this paragraph remain included?]

YES

8: On the 1st June 2017I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Restons Solicitors. I requested the Claimant provide copies of the Contract along with any relevant terms and conditions, as well as a copy of any Notices and Deeds of Assignment.
[I didn’t ask for a default notice due to it being for an overdraft, should I have done?]

yes, but it's okay you've mentioned it in 7.

10. On the 1st June 2017 I sent a formal request for a copy of the original agreement to Arrow Global pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.
[I left this paragraph in due to not receiving anything back from Restons as yet to advise claim is for an overdraft. A copy of the credit agreement was sent to Arrow Global]

not sure what you mean, You sent a CCA request to Arrow - in which case leave this in and mention sections 77 / 78 .

11. The Claimant has failed to comply with [s77 (1) / s 78 (1)]Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.
[Should this paragraph be removed?]

Leave it in as you haven't had a copy of the agreement - you don't KNOW it is an overdraft yet

11.5 There exists the possibility that an overdraft maybe involved in this claim, and as such, that charges may have been added due to an unfair relationship. However, without further information from the claimant, which has been requested and not provided, I am unable to plead my case.
[Paragraph added by me]

will come back to that bit...

[12: 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), but they have declined.]
[For this paragraph, In the CPR 3.14 letter to Reston Solicitors, there is a paragraph asking for additional time, but Restons have not written to me with a response, but they haven’t ‘declined’ the request as such]

change last bit to 'but they have failed to acknowledge my request.'

[Amethyst]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Okay might need more thinking on... I think we need to be a little bit vaguer ( for now) ... other input most welcome as always.


so

11.5 There exists the possibility that an overdraft maybe involved in this claim, and as such, that charges may have been added due to an unfair relationship. However, without further information from the claimant, which has been requested and not provided, I am unable to plead my case.

okay add in after 3....

4: I have held various financial products with HSBC over the years however I am uncertain as to what the Claimant's claim applies.

then later

13: I do not recognise the amount claimed and I believe that the sum has been calculated to include excessive and unfair charges, be it for late payment, returned payment or overdraft fees. It would be my contention that these charges may have increased any debt because of the terms of the contract relating to the account or accounts causing an unfair relationship. However I am unable to plead effectively without further information from the Claimant as to the origin of the alleged debt.

then the bit about amending defence and strike out.

[TIM50]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Thank you @Amethyst and @warwick65

This is a massive help and really appreciated. I would literally be lost otherwise.

I have edited the defence statement as suggested. This is how it is now looking:

1: I received the claim #Claim Number from the Northampton County Court on 19th June 2017.

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

3: This claim appears to be for agreement regulated under the Consumer Credit Act 1974.

4: I have held various financial products with HSBC over the years however I am uncertain as to what the Claimant's claim applies.

5: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

6. The Claimants statement of case states that the account was assigned from HSBC to Arrow Global Limited on February 18th 2016. The Defendant does not recall receiving notice of this assignment. The claimant is put to strict proof they have the right to bring the claim by disclosing the deed of assignment.

7. It is denied that HSBC served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

8: On the 1st June 2017 I sent a request for inspection of documents mentioned in the Claimants statement of case under Civil Procedure Rule 31.14 to Restons Solicitors Limited. I requested the Claimant provide copies of the Contract along with any relevant terms and conditions, as well as a copy of any Notices and Deeds of Assignment.

9. Restons Solicitors Limited have not sent any of these documents to me.

10. On the 1st June 2017 I sent a formal request for a copy of the original agreement to Arrow Global Limited pursuant to section 77 / 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

11. The Claimant has failed to comply with s77 (1) / s 78 (1) Consumer Credit Act 1974 and by virtue of s77 (4) / s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

12: 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), but they have failed to acknowledge my request.

13. 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.

14: I do not recognise the amount claimed and I believe that the sum has been calculated to include excessive and unfair charges, be it for late payment, returned payment or overdraft fees. It would be my contention that these charges may have increased any debt because of the terms of the contract relating to the account or accounts causing an unfair relationship. However I am unable to plead effectively without further information from the Claimant as to the origin of the alleged debt.

15. 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.

16. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

17. It is denied that the Claimant is entitled to the relief as claimed or at all.
admitted/denied] that the Defendant has [previously] entered into [an agreement/agreements] with [Original Creditor /Claimant] for provision of cred
Statement of Truth

The Defendant believes that the facts stated in this Defence are true.


Signed …………………………………………

Dated .................................................. ....

[Amethyst]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Minor issue - take the square brackets out of para 11 ...

[Amethyst]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Yip sounds good - there's no statute barring issues on this at all are there ? ( just checking )

[TIM50]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Minor issue - take the square brackets out of para 11 ...

Thanks, done. I have edited the statement to include the full company titles of Reston and Arrow Global also. No possibility of being statute barred unfortunately.

[TIM50]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

So would you say this is now ready to be submitted (assuming I receive nothing from Restons/Arrow by Monday)?

If I receive any correspondence from them, I guess that will mean a few sections of the defence statement will need to be changed to reflect hearing back from them, and depending on their response.

[Amethyst]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Ok cool. Well get that in tomorrow and then it's a case of wait and see what they've got Post here soon as you hear anything from court or claimant ( or if you have any problems submitting of course )

[TIM50]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

Thanks! Yes, I'm happy to submit the defence tomorrow to the court. What would happen though if after submitting the defence I then received a letter from Restons or Arrow? Couldn't that invalidate some points on the defence statement?

[charitynjw]

Re: TIM vs ARROW/RESTONS (Need urgent help with defence)

That's what your para #16 is for.