Help with Court CCJ letter 1st credit *** SETTLED OUT OF COURT ***

[B3rty]

Phoned the court today who told me the hearing date is middle of March so I have a couple of months to prepare

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[car2403]

Originally Posted by B3rty

Phoned the court today who told me the hearing date is middle of March so I have a couple of months to prepare

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My Court told me that too, in December, so I put my feet up over Christmas - I've now discovered the hearings are 15/26 February! :o

Get your preparation underway now, so you have time to get advice and make additions to your arguments - you can never be TOO prepared, IMHO...

[B3rty]

I need to start thinking about my court case...can anyone point me in the direction of any threads to read that may help with the preperation?

[car2403]

This is the Charge claim one;

GOT A COURT DATE? Important, please read......

Most of it is relevant.

Your statement of case is the most important thing now, IMHO.

[B3rty]

I have a court date mid March so I am beginning to focus on my defence and prepare a skeleton argument and just need some guidance on this

The court directions requires them to bring originals and a copy of the default notice which they didn’t provide in the MCOL defence for documentation, I suspect if they don’t have the default notice they will not proceed so have to assume that they have this and the only time I get to see it will be when I receive their court docs 14 days prior to the case so I cannot include much in my preparation but need to leave the door open.

Ok this is my intended argument and docs I will be using for my defence which is based around

No default notice produced
Agreement not legal as prescribed terms not contained in single document and not signed by creditor unenforceable by the court

CPR 7.3- Original documentation required in court

CCA 1974 87,88 -default notice terms
61(1) - Prescribed terms in agreement
127(3)- Court may not enforce

CCA regs 1983 2,6 – Content of agreements
CCA 2006 Schedules…127(3) not retrospective

Case Law
Wilson v First County Trust s. 9,10,11
Wilson v Hurstanger s.49,50

Other documentation Quote from Francis Bennion website regarding 127(3)

Plus I have a lovely selection of we refuse your offer ( token payment) and if you don’t agree to pay us what we want we will eat your children type letters, I will out line my agreement with MBNA as I can’t deny the debt along with my attempts to pay as I have paid token payments every month.

I am positive they will use the fact that I have paid and written to them as to me acknowledging the debt so I am prepared for some tricky questions here and will counter with my attempts to pay as I wrote to them each month for 6 months with a cheque for a token payment asking them to accept this, they cashed it and replied saying offer refused then in between sent the usual rubbish letters including a dummy SD…..

Question 1. Can I present any documents in court that I do not include in my court bundle……or example should their lawyer want to use the “if any” argument I have an email from F Bennion explaining this, can I produce this if its not in the bundle, or if I want to use some of their horrible letters do I need to include these in the bundle?

Question 2. Do I need to produce copies of all the above docs or can I just cut an paste the relevant sections?

Question 3. Does anyone have any other case law or points I have missed in the above or a guide to preparing a Skeleton argument?

Thanks

Berty

[pt2537]

Originally Posted by B3rty

I have a court date mid March so I am beginning to focus on my defence and prepare a skeleton argument and just need some guidance on this

The court directions requires them to bring originals and a copy of the default notice which they didn’t provide in the MCOL defence for documentation, I suspect if they don’t have the default notice they will not proceed so have to assume that they have this and the only time I get to see it will be when I receive their court docs 14 days prior to the case so I cannot include much in my preparation but need to leave the door open.

Ok this is my intended argument and docs I will be using for my defence which is based around

No default notice produced Without a default notice, it should be argued that they are not entitled to take any enforcement action as laid out in S87/88 CCA

Agreement not legal as prescribed terms not contained in single document and not signed by creditor unenforceable by the court Ah, Slight corection here, the prescribed terms must be contained within the agreement not necessarily a single page, an agreement can run over many pages, but the prescribed terms must be in the agreement itself

now , no creditor signature would leave the agreement unenforceable except by court order. however no prescribed terms in the agreement means game over

CPR 7.3- Original documentation required in court Yep

CCA 1974 87,88 -default notice terms
61(1) - Prescribed terms in agreement
127(3)- Court may not enforce

CCA regs 1983 2,6 – Content of agreements SI 1983/1553
CCA 2006 Schedules…127(3) not retrospective S15 CCA 2006 does not retrospectively repeal s127(3) CCA 1974

Case Law
Wilson v First County Trust s. 9,10,11
Wilson v Hurstanger s.49,50

Other documentation Quote from Francis Bennion website regarding 127(3)

Plus I have a lovely selection of we refuse your offer ( token payment) and if you don’t agree to pay us what we want we will eat your children type letters, I will out line my agreement with MBNA as I can’t deny the debt along with my attempts to pay as I have paid token payments every month.

I am positive they will use the fact that I have paid and written to them as to me acknowledging the debt so I am prepared for some tricky questions here and will counter with my attempts to pay as I wrote to them each month for 6 months with a cheque for a token payment asking them to accept this, they cashed it and replied saying offer refused then in between sent the usual rubbish letters including a dummy SD….. RUBBISH!!!!! You can write i owe MBNA in block capitals on an A3 Sheet of paper and walk into the court room waving it around. it is immaterial as the fact is without the prescribed terms the judge has his hands well and truely tied by the House of Lords rulings

Question 1. Can I present any documents in court that I do not include in my court bundle……or example should their lawyer want to use the “if any” argument I have an email from F Bennion explaining this, can I produce this if its not in the bundle, or if I want to use some of their horrible letters do I need to include these in the bundle?

You must include all written document that you are going to rely upon within your bundle,other wise the court can refuse you premission to rely upon it

Question 2. Do I need to produce copies of all the above docs or can I just cut an paste the relevant sections? you could cut and past the relevent sections for your bundle but i would make sure that each piece is clearly referenced as to where it came from, after all you would need a small rain forest for some of the bits if you were to fully print them

Question 3. Does anyone have any other case law or points I have missed in the above or a guide to preparing a Skeleton argument?

I have some old skeleton arguments which i will dig out, i will have a think on the case law

Thanks

Berty

i hope this helps

regards
paul

[B3rty]

Thanks Paul
I think the crux if they produce a default notice is the document containing the prescribed terms as they need to prove its all contained in a single document and can only do this with an original...however its interesting that amoung the docs that MBNA have sent them which includes every statement of the account they missed the default notice!

[car2403]

Originally Posted by pt2537

RUBBISH!!!!! You can write i owe MBNA in block capitals on an A3 Sheet of paper and walk into the court room waving it around. it is immaterial as the fact is without the prescribed terms the judge has his hands well and truely tied by the House of Lords rulings

Paul, I love it!

Can we write "Round 1... ding, ding..." on the other side, just so the Judge knows how this case is being viewed?



Here's a thought - if there's no Default Notice, they can't enforce the agreement. Why not submit an application notice asking the Court to strike out the claim as an abuse of the Courts process under CPR Part 3?;

3.4(2)The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;...

Without following the prescribed process of Defaulting you via a Notice, they don't have reasonable grounds to bring the claim.

If they don't produce a Default Notice before the Application hearing, the Court will HAVE TO strike the claim out as it's unlawful.

If they do produce a Default Notice, you can argue they are bound by s.172 CCA 1974 in that they haven't produced it until forced to, in which case it is unjust to allow them to rely on it in the current proceedings, so the Court MAY strike their claim out.

Either way, this will be one way to get the Default Notice and allow you to prepare your Defence against the claim - that has to be worth the £40 Application fee, doesn't it?

[B3rty]

Could you explain how I do this and what form I need?

[car2403]

The form you need is a N244, here;

http://www.hmcourts-service.gov.uk/c.../n244_0400.pdf

Fill it in like this; (if you click "highlight fields" at the top, it will make the form easier to fill in)

1. Tick "without a hearing"
2. Enter "0 hours, 20 mins"
3. Tick "No"
4. Enter "N/A"
5. Enter "District Judge"
6. Enter "Claimant"

Fill in the details on the right hand side -

• In the... should be the name of the County Court - "Morpeth County Court", for example
• Claim No - enter your claim number
• Warrant No - leave blank
• Claimant - enter your FULL name
• Defendant - enter the Defendants name and reference number
• Date - enter today's date

Part A;

1. Enter your name. Delete "(We)", "on behalf of" and "the defendant" by striking through it with a pen when you print it out.
2. Enter "That the Claimants claim be struck out as an abuse of process, pursuant to CPR Part 3.4(2)(a) and CPR Part 3.4(2)(b)"
3. Enter "The Claimant has failed to provide any evidence of its compliance with the prescribed process of issuing a Default Notice, pursuant to s.87/s.88 Consumer Credit Act 1974". Strike out "(a draft of which is attached)" when printed.

Part B;

4. Tick "evidence in Part C in support of my application" Sign in the box, strike out "('s Solicitor)" and "('s litigation friend)". Leave the "position or office held" box blank. Fill in your contact details in the boxes of page one.
Part C;

Enter the Claim number on the right hand side and strike out "(We)" at the top.

This part is designed for you to enter the reasons and statements you want to rely in making the Application - as you've ticked "Without hearing" (it's cheaper, (£40) or you'll be paying £65 for a hearing - and the Court will probably order a hearing anyway) you'll want to phrase it as though you won't need to attend the Court to give further information.

I'd suggest you enter this;

"The Claimant has brought this claim in order to seek enforcement via the Court of an alleged agreement said to be regulated by the Consumer Credit Act 1974.

In order to bring the claim, prior to issuing via the Court, the Claimant is required to issue a Default Notice to the Defendant, pursuant to s.87 Consumer Credit Act 1974.

The Claimant has failed to issue such notice prior to seeking enforcement and the Claimant has also failed to satisfy a specific request from the Defendant to fully substantiate the process taken to Default the Defendant in response to a letter sent on **/**/**.

The Defendant respectfully submits that the Claimant is unable to seek enforcement of the alleged agreement, pursuant to s.87(1) Consumer Credit Act 1974, until such Default Notice has been issued and, therefore, asks the Court to strike out the Claimants claim pursuant to it's powers under CPR Part 3.4(2)(a) and CPR Part 3.4(2)(b), as the Defendant believes that the Claimants claim discloses no reasonable grounds for bringing the claim and that the statement of case is an abuse of the Courts process. (As the Claimant has failed to comply with the prescribed process of Defaulting the Defendant, prior to issuing the claim)

In the alternative, where it is held by this Court that the Claimant is entitled to bring this claim at this time, which is denied, despite that already stated above, the Defendant seeks an order from the Court that the Claimant disclose the documentation, (including, but not exclusively limited to, an original signed certified Default Notice) up on which it intends to rely on at trial. The Defendant, being a litigant in person, argues that such disclosure should be ordered at this time pursuant to the overridding objectives, in that it would alter the balance of power of the parties if standard disclosure were to be ordered, as this would limit the timeframe in which the Defendant can consider such documentation and seek advice regarding that evidence. The Defendant would like the Court to note that this information was specifically requested from the Claimant, in a request dated **/**/** but is yet to be provided, and further argues that such information should have been attached to the Claim form, pursuant to CPR Part 16.2, in that the statement of case relies on this documentation, but such documentation has not been served with the Claim form"

Sign and date the bottom of the form, then post it to the Court with a cheque/postal order for £40.00 made payable to HMCS. (Unless your exempt from paying fees"

That Part C statement may need to be reworded, as I know what it means, but others reading it might not! (I got in to the zone...)

Others may want to contribute to this Application as well, as there may be other holes in the claim that aren't covered - and it's only 1 fee per Application, so you may as well include everything in 1 form. (Sorry, but I haven't read the thread in detail from the start - this issue just stuck out from what I've seen)

[B3rty]

Thank you.....its appreciated

[car2403]

Originally Posted by B3rty

Thank you.....its appreciated

Thank me when the claim is thrown out, B3rty - I can't promise anything, but I would throw it out if I were the Judge and read that... (means little in real life though!)

As I said, I'd wait until others have had some input - many hands make light work...

[B3rty]

No....I really do apprecaite all the help I am being offered..... I am prepared to try and fail although I genuinly believe I will be succesful.

In my previous business life my skill sets were negotiation and presentation and I have faced many sticky situations so the court appearence is something I will enjoy and feel confident about, its the process and proceedures that confuse me so all this help is great