Court Hearing 25th Feb...Help Please **WON** CASE STRUCK OUT

[illonavamp]

Nope, after.

The agreement was sent to me on the 18th June.

My initial defence was filed 29th May and stated:

DEFENCE
1) The Defendant objects that the Claimant's statement of case does not comply with the Civil Procedure Rules Part 16 in that a copy of the purported written agreement between itself and the Defendant, which it cites in paragraph 2) and 3) of the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form. The Defendant is therefore unable to plead specifically to the allegations contained within the Particulars of claim at this time.
2) The Defendant has repeatedly requested a copy of the written agreement cited by the Claimant in its Particulars of claim (the first request being 19th February 2007), along with other such documentation in respect of the Defendant's alleged indebtedness to the Claimant, under a Data Protection Act 1998 Section 7 "Right of Subject Access" request. The Claimant has failed to comply.
3) Further to paragraph 2) above, a demand has been submitted by the Defendant under section 77(1) of the Consumer Credit Act 1974, requiring the Claimant to provide true copies of the alleged original agreement (the first request being 19th February 2007), as well as true copies of all documents referred to therein. The Defendant avers that whilst a creditor fails to comply with such demand any agreement would be unenforceable in its entirety by virtue of section 77(4) of the Consumer Credit Act 1974.
4) The Defendant objects that this action has been brought prior to the Claimant providing essential information and documentation, as outlined in paragraph's 2) and 3) above, despite repeated requests that it do so. The Defendant avers that the Claimant has acted without adherence to or regard for the Pre Action Protocols of the Civil Procedure Rules.


Accordingly, the Defendant requests a stay in proceedings until such time as the Defendant complies with the requests outlined in paragraph's 2) or 3) above and is therefore able to provide the necessary documentation in order that it can plead its case in compliance with CPR 16. The Defendant reserves the right to then plead further to the Allegations contained within the Particulars of claim.

[tomterm8]

So, have you amended your defence subsequently?

[illonavamp]

Attach the defence to your app notice.

Check.

Take three copies and your fee (phone the court to find details of how much it will cost / any exemptions).

I already phoned and asked - they said 40.00

Ask if the court will serve it for you. if not, send one of the copies to the address on the claimants form (their soliciters address) and use special delivery if possible. Keep the proof of postage.

The solicitor that was at the hearing last was from Southampton and from what he said he's only just been instructed (I think he was expecting it to be a final hearing, one-off, ten-minute jobbie).

Up to now the correspondence has been with the address of the claimant at Nationwide as per the court claim filed. - should I send it there? or phone the court for the name and address of the Claimants solicitor since they instructed him to attend last week?

The court will probably be closed when I can get there tomorrow so I'll
- hand two copies in to court with fee and confirmation that copy has been sent to claimant
- send a copy to the claimant/claimants solicitor - recorded delivery.

That sound like a plan?

[illonavamp]

Originally Posted by tomterm8

So, have you amended your defence subsequently?

The one I used and submitted in my bundle was the one mrm helped me with; kind of that one but with some meat on the bones.,

pt has now provided the whole cow

[pt2537]

Originally Posted by illonavamp

Check.



I already phoned and asked - they said 40.00



The solicitor that was at the hearing last was from Southampton and from what he said he's only just been instructed (I think he was expecting it to be a final hearing, one-off, ten-minute jobbie).

Up to now the correspondence has been with the address of the claimant at Nationwide as per the court claim filed. - should I send it there? or phone the court for the name and address of the Claimants solicitor since they instructed him to attend last week?

The court will probably be closed when I can get there tomorrow so I'll
- hand two copies in to court with fee and confirmation that copy has been sent to claimant
- send a copy to the claimant/claimants solicitor - recorded delivery.

That sound like a plan?

Its best to check with the court, they should serve the amended defence on the claimant. the thing is, that until you are granted permission to amend the defence,even if you send it to the claimant, then its a worthless document as you need the judges permission to amend it

its a long time since i have had to file an amended defence under these conditions

i did one a while ago for Robcag another member who was in the same sort of situation as you

i will have a look and see if i can find robs thread

[pt2537]

http://www.francisbennion.com/pdfs/f...974-s127-3.pdf

it would be good to have a print out of this too incase they question the use of Bennions comments

[illonavamp]

Yes I like that, must buy that guy a pint.

[illonavamp]

OK, I'll hand it in then, in which case it will be Monday, 10am. That'll give me time to read it a few more times so that I can quote it.

I still haven't had a copy of the order from Monday yet. I have a feeling the Claimant will want to submit the T&Cs very quickly, since they now think they have gotten away with it and all they have to supply is a couple of leaflets. I wouldn't be surprised if they've sent them already.

[pt2537]

in actual fact. try to make sure that when you go to court, you have spare copies of anything you are likely to rely upon. its just incase the judge or the other side say they dont have a copy,you can then hand out a copy, and it shuts em up too

[spiritgirl59]

Originally Posted by tomterm8

can i check if you recieved the "credit agreement" (i.e. app form) before the defence was submitted or after? Cos that would be a major point.

Subbing

This is a great thread and will be very helpful to me.

My agreement was received AFTER I filed my holding defence.

My thread Spiritgirl -v- Various DCAs

Good luck and best wishes
SG x

[mrmarmite]

with PT's help are you ready for round 2 now?

[illonavamp]

I'll take copies of everything then. Is this likely to be an on the spot thing or will there be another mini hearing?

Yes I'm ready, of course I am expecting the worst so that I can be pleasantly surprised. I feel much better than I did when I got home on Monday, put it that way.

I'll feel even better when my new defence is accepted and served. I've slept about 12 hours since Monday.

[mrmarmite]

if new defence taken, only way i could see it put back again is by OC needing more info but at that point they should have info they need with them, so hopefully it be finished on next hearing

[pt2537]

Right, even if the defence isnt accepted, which i genuinely think it will be do you think the DJ will want his decision to refuse it appealed will he, and as for the main hearing, again, if the judge is drawn to the fact that the document royally sucks he cant really fly in the face of the court of appeal and the house of lords by ignoring the exact same facts as presented in many other cases and award judgment to the claimants. the judge wont be wanting that appealed im fairly sure


keep positive thoughts from here on

even if the defence isnt accepted, dont worry, im sure i can write a killer Skele arguement and witness statement for you