Advice requested regarding court threat **WON** Case Struck out

[Rilly]

Thanks pt, the allocation questionnaire arrived today. It all seems fairly straightforward, except for the 'other information' section ('set out any other information you consider will help the judge to manage or clarify the claim, including any other information you consider should be supplied by the other party').

I could do with some guidance as to what is expected - the notes on the back refer to attaching certain documents. I'm thinking this would be the letters & fax requesting the cca agreement etc?

Do I need to cover the same detail I've already mentioned on my defence form?

Incidentally, still no reply from the solicitors.

Thanks again,

Rilly

[pt2537]

What AQ is it ? is it a N149 or 150 form?

i have some directions that i often use so if you let me know what form it is i can post the correct ones

Regards paul

[Rilly]

Hi pt, thanks for the quick reply. It's the N149 form.

Rilly

[Edz11]

Paul likes to use the "daisy cutter" approach to litigation. There are no survivors when Paul's writ one of his missives.

I think that in the "other info" section it's best to keep it short and sweet so the Judge doesn't have to think.

"The claimant has been informed of outstanding information in my defence dated xxxx

Because the claimant did not reply to my request for information before the deadline for my defence I have only been able to make a preliminary defence.

A Part 18 request has been made to the claimant on xxxxxx in the hope that this will assist them in providing the information originally requested - although they have not yet responded to it. A copy of the Part 18 request is enclosed".

Using case management powers the Judge should come up with an order that will produce the info you've requested. The alternative is for the Judge to say "god, there's too much here - let's have a directions hearing first".

[pt2537]

XXXXXXXXXX -v- XXXXXXX
Claim No: xxxxxxxxx

N149 Allocation Questionnaire

Section G - other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give
notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

Therefore it stands to reason that this document must be disclosed before this case can progress any further

In the ************* County Court
Claim number **********

Between

************* - Claimant

and

xxxxxxxxxxxxx - Defendant

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
• Document, contract or deed of assignment and notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
• Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.


2. The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

Cheers Ed

right then, heres the directions and section G other info that i use in these cases

[Rilly]

Thanks guys, this is all a great help. However, things have taken a slightly different tack, as I have today received a copy of the CCA from Cohens' together with all the copy statements that are available (there are still about 14 missing).

This is 4 days past the deadline set in my request.

The covering letter they sent is reproduced in full as follows;

Dear ...

We refer to your letter of ... in which you have made a request for information under the Civil Procedure Rules.

We are not obliged to provide this information, and would advise that the particulars of the claim detailed in the County Court Claim Form should be sufficient to allow you to respond accordingly. That said, we have enclosed your credit agreement and available statements of account.

Please be advised that this firm is not the creditor in this matter. The creditor is CL Finance and we are merely instructed to act on behalf of that company to recover the outstanding balance due. We are not the creditor and are not covered by the Consumer Credit Act 2006. We are therefore not obliged to provide you with information such as a complaints procedure or the date the debt was acquired.

Please respond to the claim form with either an appropriate defence or an admission and offer of repayment.

Failure to do so will result in a judgment being entered without reference to you.

Yours sincerely,


What's the best course of action from here please?

Rilly

[pt2537]

Rilly
Any chance we can take a look at the agreement?

it would be good to see how correct it is and if it has any missing information

it may be the case that this agreement isnt worth the paper its written on

obviously remove all personal details first

regards
paul

[Goldlady]

Quite a few of my statements are missing too - enough to prevent me submitting a proper defence

[Edz11]

Rilly - as Paul says - a look at the agreement's essential.

[Rilly]

Will do. Having a few problems with my scanner at the minute, but I'll endeavour to scan it, photoshop out the identity details & post asap.

Thanks,

Rilly

[Rilly]

Sorry for the delay everybody, major computer issues this weekend. Now hopefully sorted. I hope the anticipation hasn't been too bad!

Anyway, I have at last attached the CCA.

As always, I'd be grateful for your responses.

Thanks,

Rilly

[pt2537]

Hi Rilly,

i have had a look but the image is too small

can you upload it into photobucket and then post it here

[Rilly]

Sorry, I thought that somehow the image could be enlarged. Hopefully this link should do it?

Rillyy - Photobucket - Video and Image Hosting

Regards, Rilly

[pt2537]

Hey rilly,

well guess what

if that is what they claim to be your binding credit agreement...........



id be very happy because it has no prescribed terms

totally unenforceable IMHO

[Rilly]

Thanks pt, sorry for delayed reply but I've been working away. This sounds like good news! What's the best thing to do from here? I believe I have 7 days from tomorrow to complete the court response form. Should I make reference to the fact that the credit agreement has no prescribed terms? (also, I know I'm going to kick myself, but was does IMHO mean?)

Thanks, Rilly