**DISCONTINUED** Court Claim - 1st Credit (Finance) Limited / M&S

[tilly2015]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

Hi FP,

They only signed for the letter last Monday (post a bit slow!) so will do next week

Many thanks & best regards

Tilly

[tilly2015]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

Hi,

I have chased the solicitors and have not heard back as of yet. So I thought I better start on my defence I have looked through the threads and found the one below. Do you think I can use this? Section 7. probably needs changing as 1st Credit have put up a default notice on my credit file which is not the original.

Regards

Tilly


1: I received the claimxxxxxxxxx from the Northampton County Court Business Centre on xxxxxxxxxx

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

3: This claim is for a Credit Card agreement regulated under the Consumer Credit Act 1974.

4: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim. The particulars of claim fail to state when the agreement was entered into, the date of any alleged Default or any detail how the sum claimed has been calculated.

5. The claim is Statute barred by virtue of section 5 of the Limitations Act 1980.

6. The Claimants statement of case states that the account was assigned from xxxxxxxx to xxxxxxxx on xxxxxxxx. The Defendant does not recall receiving notice of this assignment.

7. It is denied that xxxxxxxx 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 xxxxxxxxxxxxx I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to xxxxxxxxxxxxxxxxx . I requested the Claimant provide copies of the [Agreement, Default Notice and Notice of Assignment] .

9. [Claimant's Solicitor] has not sent any of these documents to me.

10. On the [Date] I sent a formal request for a copy of the original agreement to [Claimant] pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

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

12. 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.

13. 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. 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.

14. 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.



Signed …………………………………………

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

[nemesis45]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

Hi Tilly,
Just taken a glance through your thread a significant point the Default "Date "- v - The Default Notice " Date the two are not synonymous a DN is Not the date the default is registered. from A DN issued in July ( which you seem to be relying on) would not result in a default being registered until after the time scale to remedy had expired so at least 14 days or even some months after the DN was issued.

This leads me to believe this is not Statute Barred.

The default date was not applied by 1st Credit but by M & S all 1st Credit has done it update the original entry place by M & S they cannot change that part of the entry on the credit files.
The date 1st Credit acquired the debt is not relevant often debt purchaser will only update CRA files when they start to pursue a debt.
I'll mark the points on Post #1 and bring it forward.

nem

I am sorry to say you will need to amend your defence.

[nemesis45]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

Received a claim? Yes
Issue Date: 25-8-2015
Amount approx:
Claimant: 1st Credit (Finance) Limited
Solicitor: Walker Morris LLP
Original Credit: Marks & Spencers

Particulars of Claim:
On **/11/ 1999 the Defendant entered into an agreement for a credit card with the original creditor under Ref No ********* On the **/12/2009 the Defendant defaulted on the agreement with an outstanding balance of 5000. On **/01/2013 the debt was assigned to 1st Credit (Finance) Ltd in the sum of 5000 by the creditor. Statutory Notices of Assignment were sent to the defendant.
AND THE CLAIMANT CLAIMS
1. The sum 6000
2. Statutory interest pursuant to S.69 County Courts Act 1984 at 8% per annum from **/01/2013 until judgement or sooner payment.
The claimant claims interest under section 69 of the County Courts Act 1984 at the rate &% a year from **/01/2013 to **/08/2015 on 5000 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 1.09.

Stat Barred? Yes

Have sent: Acknowledged the Claim

Other Info: Date of DN is Not Date Default is Registered.
Received this claim from 1st Credit but thought that this was statute barred as I did some investigating and found the******* original default notice******** which was issued **/07/2009 ********and not as 1st credit have said which is the **/12/2009. I then checked my credit file and they have have lodged a default on my file with an inaccurate default showing **/12/2009. *********Registered by M&S not 1st Credit *****

Also it is not a edit card as mentioned in the particulars of claim but an account called a personal reserve (if that makes any difference!)

I had some money problems and could not make any more payments so the last payment and contact was **/04/2009.

Also 1st Credit state that they had bought the debt in Jan 2013 yet the default registered with the CRA is 1st Credit dated **/12/2009 reading through some of the threads I thought that they had to use the original default notice date! Again Def

The date purchased makes no difference to the Default date which 1st Credit Cannot Change.

Any help would be appreciated in what to do next

Many thanks in advance

Tilly

See notes

nem

[FlamingParrot]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

I have chased the solicitors and have not heard back as of yet. So I thought I better start on my defence I have looked through the threads and found the one below. Do you think I can use this? Section 7. probably needs changing as 1st Credit have put up a default notice on my credit file which is not the original.

Hi Tilly

The original default date should remain and the only thing that should be updated is the name of the creditor/account owner. If they've moved the default forward, this is something you should challenge and ask 1st Crud to amend the entry. However, this is purely for the purpose of restoring your credit file to its former glory once the six years are up. :thumb:

Credit reporting has nothing to do with court claims so whatever date is on there is of no relevance to the case or your defence. The default notice referred to is the letter M&S should have sent you shortly after you stopped making your contractual payments, which is a requirement under s.87 of the CCA.

[nemesis45]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

Hi Tilly

The original default date should remain and the only thing that should be updated is the name of the creditor/account owner. If they've moved the default forward, this is something you should challenge and ask 1st Crud to amend the entry. However, this is purely for the purpose of restoring your credit file to its former glory once the six years are up. :thumb:

Credit reporting has nothing to do with court claims so whatever date is on there is of no relevance to the case or your defence. The default notice referred to is the letter M&S should have sent you shortly after you stopped making your contractual payments, which is a requirement under s.87 of the CCA.
[/COLOR]

The July date is the date on a Default Notice not the Default Date !!
No Evidence of a change.

The DN is Not a Default Registered on an account.

nem

[FlamingParrot]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

Hi Tilly,
Just taken a glance through your thread a significant point the Default "Date "- v - The Default Notice " Date the two are not synonymous a DN is Not the date the default is registered. from A DN issued in July ( which you seem to be relying on) would not result in a default being registered until after the time scale to remedy had expired so at least 14 days or even some months after the DN was issued.

This leads me to believe this is not Statute Barred.

Why not?

Issue Date: 25-8-2015

I had some money problems and could not make any more payments so the last payment and contact was **/04/2009.

Also 1st Credit state that they had bought the debt in Jan 2013 yetthe default registered with the CRA is 1st Credit dated **/12/2009 reading through some of the threads I thought that they had to use the original default notice date!

As previously stated, the default date on the credit files is irrelevant, however, if the last payment was in April 2009 and the claim was issued in August 2015, I should think there would have been cause of action long before August 2009.

[nemesis45]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

The Claim stated defaulted December 2009 as this is not a credit card account my guess is 1st Credit will refute SB.

nem

[FlamingParrot]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

The July date is the date on a Default Notice not the Default Date !!
No Evidence of a change.

The DN is Not a Default Registered on an account.

nem

That's precisely what I was saying above, however, five months is a little too long after a DN is issued for a default to be recorded, however, that's not the most important issue here. Even if the judge went by the DN date as one (mistakenly) did in a recent case, if the DN is dated July 2009 and the claim is dated August 2015, it would still be SBd, wouldn't it?

- - - Updated - - -

The Claim stated defaulted December 2009

The claim went by the date on the credit files which, as we've established, has nothing to do with SBd.

as this is not a credit card account my guess is 1st Credit will refute SB.

If they want to argue it was an overdraft, then they'll be in the same position as Arrow: https://consumercreditlitigationandd...lobal-limited/

The Claimants argument, and this is a peach, is that the agreement isnt regulated because its a overdraft?@????
Well a few problems there, firstly its not an overdraft, M&S own website records confirm this, secondly an overdraft needs a current account to be sustained, you cannot have an overdraft without a current account, thirdly, the account couldnt hold a credit balance so therefore it couldnt be an overdraft.

[nemesis45]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

That's precisely what I was saying above, however, five months is a little too long after a DN is issued for a default to be recorded, however, that's not the most important issue here. Even if the judge went by the DN date as one (mistakenly) did in a recent case, if the DN is dated July 2009 and the claim is dated August 2015, it would still be SBd, wouldn't it?

Unfortunately with M &S 's dodgy " is it a credit card or is it an OD accounts " it's not unusual. The Default is registered December by bet 1st Credit will rely on this as they have in the past successfully.
hate to admit 1st Crud beat me in court on a very similar claim.

nem

[FlamingParrot]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

Unfortunately with M &S 's dodgy " is it a credit card or is it an OD accounts " it's not unusual. The Default is registered December by bet 1st Credit will rely on this as they have in the past successfully.
hate to admit 1st Crud beat me in court on a very similar claim.

nem

You meant the default on the credit files? That's got nothing to do with SBd, the cause of action has nothing to do with credit files and like I said above, even if they went with the date on the DN it would still be SBd.

As you have seen from PT's blog, Arrow were beaten with a similar account so I can't see why the same argument wouldn't apply here.

I'll see if [MENTION=551]pt2537[/MENTION] can pop round here at some point before the defence is filed.

[nemesis45]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

The POC the account fell into default ***/12/2009.

nem

[FlamingParrot]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

The POC the account fell into default ***/12/2009.

nem

They would, wouldn't they? The POC were written by 1st Crud (or their representatives), obviously based on the date they themselves recorded the default on the credit files, how very convenient.

[nemesis45]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

They would, wouldn't they? The POC were written by 1st Crud (or their representatives), obviously based on the date they themselves recorded the default on the credit files, how very convenient.

No I don't thinks so 1st Credit's legal department has had on major overhaul I suspect because of flack from the courts over the " status" of some of their earlier claims.
I suspect they have a lurking member here as they had on CAG and when a contributor made a statement about their conduct all hell broke loose the then CEO Nathoo went ape when accusations were made about changing dates when there was no proof of any such conduct.

[Berniethebolt]

Re: Court Claim - 1st Credit (Finance) Limited / Marks & Spencers - 25-8-2015

I see at least two flaws here, first is that if the DN was issued in July the account is SB , if you argue it's an overdraft then they could have begun proceedings 18 days after the DN was issued so to me that would have been the latest COA. However the POC state it is a credit card, they can not mid hearing suddenly say oops it's not a credit card.

Final point is PT has won an almost identical case so if you lost one Nem maybe you should have sought the help of a professional.

Do do you act as a MF or are you licensed ?