- Sat Jan 31, 2015 12:53 pm
OK I've seen a similar case recently where Maxx Recovery bought an old failed IVA debt that was not statute barred (due to last payment being made made within the last six years by the IVA Trustee). They then asked Eversheds Solicitors to chase it on their behalf, so effectively (like you) the client received the Letter before Action from Maxx.
In that instance they chose not get into the nitty gritty of chasing or defending the laws definitions, but just accepted that the past payment had been made with 6 years so that it was not barred. In that case, which is similar to yours, the IVA had failed and had been running for several years before it failed, but the key bit being that the debt being chased was opened pre-2008.
The matter was stopped reasonably quickly as the client challenged Maxx and Evershed to produce all the relevant documentation that they would need if they attempted court action. Maxx were not able to produce the Credit Agreement!
So in this case it may pay to send the letter below. Send this to the Solicitors and a COPY to Maxx.
Dear Sirs,[DQ Hint: For more information on the Practice Direction Pre-Action Conduct, please follow this link
Ref: [Account/Reference Number]
Thank you for your letter dated [Date].
As your letter contains a threat of litigation, it is being treated as a formal Letter before Action.
As such, I refer you to:
Paragraphs 1.1 and 1.2 of the Practice Direction Pre-Action Conduct, which states the purpose of such a letter is to “enable the parties to settle the issues between them” and to encourage the parties to “exchange information”.
Paragraph 2.2 (1) of Annex A states you have an obligation to “list the essential documents on which the Claimant intends to rely”, I could not identify any such list in your letter.
Paragraph 3.2 (3) of Annex A allows me to “request further information to enable me to provide a full response” to your Letter before Action.
Paragraph 4.4 (1) and (4) specifically gives examples of a failure of compliance by a party, where you do "not provided sufficient information to enable the other party to understand the issues" and "without good reason, not disclosed documents requested to be disclosed"
Paragraph 5.1 of Annex A states that you should “provide the documents requested within as short a period of time as is practicable or explain in writing why the documents will not be provided”. I would suggest that a suitable period of time in which to provide the documents would be 12 days for the date of receipt of this latter as per the requirements under the Consumer Credit Act 1974 regarding an application for an enforcement order (CCJ)
Therefore, I must formally request the following documents from you as the information I require would come from those documents. :
The original account agreement (including the original Terms and Conditions and all amendments to the Terms and Conditions);
The original Default Notice;
The original Termination Notice;
All original Notices of Assignments;
Statements of accounts, covering the past 6 years;
Please note that I am requesting copies of the ORIGINAL documents as these documents will be expected to be supplied to the court if proceedings were issued and should legally be in your possession if you were issuing a claim. If you consider that there is difficulty in providing a copy of a document, please identify that document and the reason.
For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources but indeed the original signed document purporting to be signed by myself.
Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt and this account will remain in an unenforceable state protected in line with s.127 (CCA1974).
I will be able to provide you with a full response to your letter within 14 days of receipt of the documents listed above.
I also reserve the right to refer to the contents of this letter if proceedings are issued without first providing copy documents to me.
Please also note that as this is a Letter before Action, I will only correspond with you in writing. This is to ensure that there are no misunderstanding which can occur during telephone calls, and thus allows for complete accountability on both parties side.
http://www.justice.gov.uk/courts/proced ... on_conduct]
Something to consider is what happened to all the other debts that were included in the IVA, it is possible that these have also been sold on.