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Kearns solicitors letter before action

assets asked:

Hello,

I have received a letter from kearns solicitors dated 31st March 2016 regarding a default on a barclaycard from 2012. It had gone quiet for a number of years after a hounding. At the time I sent the 3 letters and they could not provide me with the information requested. I have received letters over the last year but have returned them to sender due to not living at that address any more but still have the means to collect the mail. The letter reads as follows.

We have been instructed to act on behalf of IDR Finance UK II Limited.

As per previous correspondence we confirm again that the benefit of the above referenced debt has been legally assigned to IDR Finance UK II Limited, with Link Financial Outsourcing Limited being appointed to administer and recover the account.

Due to the default, the full balance is due and outstanding. Link Financial Outsourcing Limited has attempted to negotiate repayment of the account with you but however has not been successful.

For the avoidance of doubt, we hereby demand payment of £5,146.24, within the course of the next 14 days. On expiry of those fourteen days, we have instructions to issue Court proceedings against you, without further notice, seeking an order for payment of the full outstanding balance together with statutory interest on that sum, at the rate of 8% per annum, and costs.

If you wish to prevent this course of action you should pay the outstanding balance within the next 14 days.

Should you wish to discuss further, please contact us on 02920 808668.

Yours sincerely,
Kearns solicitors

Signed kearns solicitors no name.

To be honest this has gotten me a little worried and any advice on this matter would be greatly appreciated because I’m not to sure on how to proceed with this matter.

Thanks,
Mark

Tiggy replied:

If you’ve received a Letter before Action (ie threatening a CCJ) you can respond using the County Courts Pre Action Conduct – Request for Further Information. If they commence proceedings against you without responding, in full, to your request, you can apply to the Courts to Stay the Claim until they do respond. Look at the link there’s a letter on here you can adapt and send.

viewtopic.php?f=5&t=85066&p=419344#p419344

assets replied:

Thank you Tiggy for your quick response and the link I shall be adapting and sending asap.

Thanks again

assets replied:

So I received a letter today dated 8th August from the solicitors including the original signed by me credit agreement saying my account is put on hold for 14 days while they retrieve my statements which will be sent in due course and for me to respond to discuss payment on the account. If no response is received within 14 days a claim form may be issued incurring costs and if I do not respond to the claim they may enter a county court judgement against me.

Any help on further action if any I could take would be greatly appreciated.

Thanks

houseoflard replied:

Now would be a good time to offer a settlement amount, which if they don’t immediately accept may result in a counter-offer. Mark any offer letters ‘without prejudice’.

royboyone replied:

Kearns and Link are very busy lately, here is a link to my thread and dealings with them. 🙂

viewtopic.php?f=5&t=101359#.V6q-NbgrKUk

Faljay replied:

Hi,

Up to you if you want to make an offer, but don’t do so just like that. You can defend any claim in court and it is NOT guaranteed the claimant will win. There are many factors that can add up to a successful defence, including the age/enforceability of the agreement, if they have a valid, legally executed deed of assignment, correctly made out default notice from the OC, adherence to CPR, etc.

Take a look in Success Stories to see how members have successfully defended claims in court.

Take Care.

😀

houseoflard replied:

They have his original signed agreement, they only need to produce a statement and evidence of the chain of assignments (and I’ve seen claims succeed even without that last part). What reasonable defence could be possibly bring?

A lot of the ‘success stories’ on this forum are people who merely managed to buy themselves more time, or turned out to be so devoid of assets it was pointless for the claimant to continue.

Faljay replied:

So you’ve read every success story that deals with the courts, have you? Odd then, because i have been personally involved with members who have have won as the claimant discontinued due to a lack of documentation and yes, even the lack of a deed of assignment whereby the judge has dismissed the claim.

If you have joined GOODF to be negative, or dissuade people from defending court claims, then I would suggest you go elsewhere to ply such downbeat information. If you’re a troll, you will not last long and be banned if your only intent is to cause problems and disruptions. If, as you claim you are a practising solicitor, I would have thought you would be only too happy to help people with legal matters, or is that only by way of being paid exorbitant amounts per hour for doing very little.

If you have no good, helpful advice, then don’t bother speaking up.

houseoflard replied:

Sure, go ahead and get dragged into court. Risk a CCJ against your name, with costs. I’m sure this site will fully support you when that happens.

They have the agreement, the chain of assignments should be held by them and they also need a statement from the lender. Yes there’s a chance they don’t hold these documents, but in all likelihood they do. This isn’t rocket science.

Some people have lost everything they own by following certain advice regularly peddled on this site. Just be careful.

houseoflard replied:

I should add that I’ve appeared in court a number of times as agents for Kearns. They prepare these cases in bulk which can lead to a lack of oversight in preparation, but I never lost a case when advocating for them.

Faljay replied:

Again, I ask why are you on this forum if you think we’re peddling bad advice. Instead of just being negative, offer some helpful advice or stay quiet or offer alternative help. This forum exists to help people, not tell them they are doomed no matter what.

royboyone replied:

I second that. 😀

assets replied:

So I have now received a claim form for a CCJ against me which is quite worrying so any sound advice on how to proceed would be greatly appreciated. As mentioned in previous posts when ask for proof they provided me with a copy of my original credit agreement signed by me from capital one (tossa’s)! Is their any further action I could take or is it a case of opening up payment negotiations with them if not to late. Is the credit agreement enough for them to win the case if it went to court?

Thanks

Faljay replied:

Hi,

Go here for a step-by-step guide to receiving a court claim:

http://www.getoutofdebtfree.org/forum/v … 80lflsrJD8

Any problems or questions post them here in your thread.

Take Care.

😀

assets replied:

Thanks very much for the extremely detailed link faljay but I must admit that I do find it a little confusing. Am I right in thinking that because the dept is for £5882 after sending the acknowledgement of service along with the defence and counterclaim from the response pack I should use the CPR 18 template letter (adapted) and send it to lowell solicitors. They have responded before with a number of documents one of which was the original agreement I shall try to attach a copy for viewing as this is the most worrying!

assets replied:

Unfortunately the file is to large eventhough it’s just a photograph!

Another question is having received a letter from kearns threatening a CCJ and having no response from them after requesting documents is there a follow-up letter I should be sending as they are well over the 45days I gave them to supply the information.

Thanks again

Faljay replied:

Hi,

Yes you need the CPR18 if they issue a claim against you, but why are you intending on counterclaiming if they have not issued a claim yet?

If Kearns have not responded to your pre-action protocol letter [I assume that’s what you sent] I would send them a copy with a brief note that they have now breached the Civil procedure Rules and you will add this to any defence should a claim be taken out against you.

As for the agreement being too large, take photos of it in parts and post up each to make a whole. BTW, what is the date on the agreement?

Take Care.

😀

houseoflard replied:

And this is exactly what I said would happen. Well done Faljay and the rest!

The agreement and a statement is enough to win on, I’ve seen it countless times when acting for lenders in court.

If you want to negotiate it’s not too late by any means. You’ll avoid a CCJ if the matter is stayed (a Tomlin Order) or discontinued following some agreed payment in full and final settlement. Make sure any agreement to pay includes those words, although it almost certainly will.

Note the longer this drags on, the less negotiating you can do since the lender / their assignee has to spend more money progressing it before the court.

Faljay replied:

What about the Deed of assignment, I suppose that’s not an issue, or is it? There have been claims made and dismissed due to the claimant not providing the Deed in court when instructed by the judge, there is also the issue of not disclosing the information upon request. And it is entirely up to the OP if they wish to continue to a hearing or make an offer.

assets replied:

OK so here are copies of everything that I have received to date!!

😥

shooter replied:

House of lard sounds like a good’n 😆 At the risk of repeating myself

Also

Your right to see the Deed of Assignment was established by Lord Denning in Van Lynn Developments v Pelias Construction Co. Ltd 1968. This was to give the alleged debtor assurance, upon seeing the documents governing the sale, of discharge of contractual obligations on performance.

Also, if the Notice of Assignment was not served in accordance with ss136(1) and 194(4), then it is invalid. This, amongst other things, means they must use recorded / registered post. If it was an absolute assignment that fails to be valid under statute, then it could succeed under common law, but this would mean that it could only ever be an equitable assignment, and only the original creditor can seek recovery in court.

Fight the fight

assets replied:

As you can see the agreement is from 2008!

And with regards to kearns it’s was the pre action conduct letter from the link sent by tiggy on the first page of this thread!!

Nice PDF shooter!

So with the risk of seeming totally thick what would be the next step for me. I’m in no way whatsoever legally minded and the mixed messages are adding to the confusion??

Am I right in thinking I should apply to Northampton courts for a stay on the claim and send the CPR 18 to lowell solicitors??

Do I need to reply to the claim form from the court with the acknowledgement of service??

As you can probably tell I’m totally out of my depth with this so any response would be greatly appreciated!

Many thanks

royboyone replied:

Posted for Reference. 🙂

So it is Lowells not Kearns that are dealing with this.

Also Claim Form Signed by a Business not a Person.

More learned members will respond about that. 😉

Faljay replied:

Hi,

If the claim is made online then they can sign with the company name. If not it must be signed by a real person.

Go here for a step-by-step guide to receiving a claim:

http://www.getoutofdebtfree.org/forum/v … 8_QT1srJD8

Take Care.

😀

assets replied:

Hello faljay

I have now returned the acknowledgement of service. I understand I need to send the CPR 18 letter to lowell solicitors along with the 3 letters. Do I need to send the CC letter aswell and if so who too and also do I need to send a copy of any of these letters to the court?

Many thanks

assets replied:

So this is the acting taken

*acknowledgement of service returned

* CPR 18 sent to lowell solicitors

* CC agreement sent to lowell finicial

Am I right in that my defence needs to be sent to the court within 28 days of the date on the claim form otherwise the claimant will win by default.

Many thanks

Faljay replied:

Yes that’s all correct. If they do not provide the documentation within the time period allowed, and do not ask for an extension, you can then enter an Unless Order via Form N244 to demand they produce the documentation within 7 days on the date of the order, or their claim will stand to be Struck Out With Prejudice.

Take Care.

😀

assets replied:

Hello

So in March 2016 I received at letter from kearns solicitors threatening legal action against me for the apparent overdue account I held with. I replied to there letter with a Pre Action Conduct – Request for Further Information. To date I have not received any reply in any form. Yesterday I received a invoice from a company called link financial from the exact same amount with the exact same account number as kearns solicitors where threatening legal action for. Anyone have any thoughts on this?

Am I right in thinking that if an agreement was signed pre 2007 then the account is barred and there is no legal right for it being pursued?

Many thanks

royboyone replied:

Hi, read my thread here it may help you out. 🙂

viewtopic.php?f=5&t=101359#.V9pY7bgrKUk

Faljay replied:

Hi,

It may mean Kearns have admitted defeat as they cannot provide the paperwork and returned it to their client, who then passed it on to Link. If you paid nothing or did not acknowledge the alleged debt for 6 years or more it is statute barred and they may not even pursue you, let alone take legal action, and even if it is not, without an agreement it is unenforceable and the court has no discretion to enforce it. And if they can supply an agreement and it’s pre-2007, it may be unenforceable any way due to being incorrectly made out.

Let me know if you believe it is statute barred and I will post up a letter you can send, or if not you can resend the pre-action letter to Link, informing them this is a copy sent to Kearns and that unless they comply, or cease harassing you, you will report them to the FOS, FCA, ICO and may take legal action against them under the Protection From Harassment Act 1997.

Take Care.

😀

assets replied:

Thanks faljay

I do not believe it is barred, I have never acknowledged or made any payments to the debt collectors but the last payment would have been October 2012 ish. As for an agreement (if they can find one) this would have been around 2000 if not earlier!

On the subject of lowell solicitors which is a different case ( sorry for the confusion I have 3 on the go) they have provided me with an apparent statement of account which in no way looks official more like something someone has knocked out on word! The apparent agreement is dated October 08 I have loaded an attachment of the first page which is a bit suspect to say the least. After one month a rather large balance with no reference then month after month nothing paid in or out but a change in the balance???

Many thanks

assets replied:

Hello

I’m a little concerned I have sent CPR18 request to lowell solicitors, it was sent on the 12th recorded signed for delivery and as of yet according to the tracking service has still not been signed for. The deadline for the court to receive my defence is 28th September. Any suggestions??

Many thanks

Tiggy replied:

Submit your defence, you don’t want them to reply to the request, you want go use their non compliance to make an unless order to get their claim dismissed.

assets replied:

Thanks for the info tiggy just to get things clear in my head would the next move be to send my defence or send an unless order via a N244 form to the courts?

I appreciate all the info provided by you folks! 😀

Many thanks

royboyone replied:

AS TIGGY SAID, get your defence in now DON’T WAIT,

any application can follow. 🙂

assets replied:

OK defence sent off today will let you all know the outcome!!

Also have received an apparent agreement from kearns solicitors dated 2000 and the agreement quite clearly says application form at the top!! 😆

royboyone replied:

Many alleged Agreements are just Applications but have been used to make a court claim and some DCAs have won on that.

You need to go through it with a fine tooth comb and find all the evidence that it is either unenforceable or has been improperly executed, have just done my defence against Kearns and to see what they are going to rely on in court is a joke. 🙂

assets replied:

Hello! I have received a directions questionnaire to fill out asking if I’m willing to enter into the small claims mediation service. It appears lowell are willing but I was thinking going down the NO route although I’m quite tempted to see what they come up with! Has anyone any history of mediation??

Thanks

royboyone replied:

Hi, I believe the Courts want you to try Mediation so would agree to it, providing that you have been (Supplied All of the Paperwork you have requested.) if you tell the Mediation people that you have not received all of the paperwork then they will say that the case is not suitable for Mediation, what happens after that I don’t know as my case hasn’t got that far as yet. 🙂