1st Credit are definitely taking me to court!

[Yog sothoth]

After submitting a defence to Northampton re. 1st Credit's claim against me, I received a letter from LCS Solicitors, on behalf of 1st Credit (Finance) Ltd:

Dear *******

Our Client: 1st Credit (Finance) Ltd)
Debt Due:£******

We acknowledge receipt of your defence.

We enclose for your attention a copy of your credit agreement and statements of accounts. Our client believes that the debt is still due and payable. Please also find enclosed a copy of a letter sent to the court informing them that our client intends to proceed with the claim.

If possible our client would still prefer to attempt to negotiate terms of settlement.

Please call this office immediately on 0870 1642080 to discuss this matter further.

Yours faithfully
(signed 'LCS' in ballpoint)
LCS Solicitors

To recap, after making a few payments to 1st Credit a couple of years ago, they got increasingly threatening and eventually I CCA'd them in March '07. They took months to reply but eventually sent me a photocopy of my MBNA application form, which is what they've sent me a duplicate of now. They have also sent copies of a few MBNA statements, as sent to customers, and lots and lots of computer print-offs detailing transactions and charges over 4 years. 6 years of info in total. They have also sent photocopied 'T&C' which is actually just the info you find on the back of the monthly statement.

The second thing I have received is an allocation questionnaire from the court, which I'm struggling with slightly, it not being as straightforward as I thought at first glance. To be returned by the 18th July.

Well, it looks like I'm off to court. I refused to acknowledge 1st Credit's supposed credit agreement, as it's just an application form, plain and simple, and arrived months after they had committed an offence by not supplying it within the prescribed period. I haven't taken any other action, written to TS or anything like that. Someone said on my previous thread I ought to CPR them, as they'd already started action, but that post came too late as I'd already submitted my defence.

So assuming I fill in and send off the allocation form, what should I expect next, what should I do, and what are my chances? LCS/1st Crud seem confident, but their "agreement" is quite clearly an application form, nothing more.

[Yog sothoth]

Also, does this action prevent me from contacting MBNA and claiming back my excessive charges? Especially as 1st Crud have kindly provided me with full details of all charges applied since 2001!

[mr.ton]

This is classic DCA behaviour - they get you to the steps of the court building & then say "oh we'd still like to sort this out with you"
Sod em - let the court process take its course, they'll have to take into account all your living expenses which could leave the DCA with £1 per month -thats why they'd rather not have the court sort it out

[Yog sothoth]

Right.

Is the debt enforceable though, if they haven't produced a properly executed credit agreement?

[dpick]

Originally Posted by Yog sothoth

Right.

Is the debt enforceable though, if they haven't produced a properly executed credit agreement?

Hi an application can in some cases be classed as an agreement BUT if it does not contain the prescribed terms namely the credit limit, the rate of interest, details of any power to vary the agreement or debtors repayment obligations then it is unenforceable.

dpick

[mr.ton]

In a word - NO

[creditcardmug]

Its the 16th today mate if your going to get that AQ in on time you need to try and send it tomorrow
Do you have another thread going on this case so we can see the details?
What are you struggling with on the AQ exactly?
IS it N149 or N150?

[Yog sothoth]

Doh! I meant the 28th, not the 18th! Hit the wrong key! Sorry!

Here's my old thread:
1st Credit reply to CCA, 1 year late!
The alleged CA is in there.

The AQ is N150. Being something new to me, I'm wary of even the simple answers, in case I shoot myself in the foot. E.g. will it look bad if I tick 'no' where it asks 'do I want to try to settle...'? It only arrived yesterday and I've just not had a chance to sit down and really go through it in detail yet, admittedly.

[creditcardmug]

Have a look here for starters while i look at your other thread

Directions for N150 or N149 Allocation questionnaire

[Yog sothoth]

Anyway I have an early start in the morning so I'll come back at some point tomorrow. Cheers!

Oh, just before I go to bed, is it still worth a CPR request at this stage?

[creditcardmug]

You might as well send a cpr tomorrow cant do any harm
Just read your other thread, whats going to be important now is to get the directions right in the AQ, because that way you can get the court to order the other side to produce the docs you require, or the case will be struck out.
Its late now well look again tomorrow, but you do need to get going on this now IMHO

[Yog sothoth]

So even despite the AQ, I should still send the cpr to Northampton?

[creditcardmug]

Originally Posted by Yog sothoth

So even despite the AQ, I should still send the cpr to Northampton?

Well i suppose it is a bit late for that now as you already have filed a defence, you would have sent the cpr to the claimant BTW, not the court.
In the Draft Order for Directions and Other Information part of the AQ you will be asking the court to order the claimant to disclose the documents

[Yog sothoth]

OK CCM. Thanks. I realised the cpr was to go to the claimant. I won't bother now. I'll be filling in the AQ after work.

[Yog sothoth]

Right, I'm back. I've had a busy weekend but when I could, I've been trying to complete the N150. To be honest however, I'm finding it a bit of a head-scratching exercise, so advice would be very welcome, as I need to get it back this week, to get there by the 28th.

I was sent two copies of the form, but it appears I only need to send one back, and a photocopy to the claimant, so I've been using the second copy to rough things out.

Running through it:

Section A: Settlement
I've ticked NO to the questions;
'do I wish to attempt to settle...'
'do I want a stay?'
'would I like mediation?'

In part 4, I gave my reasons as
The Claimant has been given ample time to produce a true and properly executed copy of the relevant credit agreement, containing all relevant terms and conditions, and has failed to do so.

Section B: Location of Trial
I have asked to be heard in my local court in Sheffield, and as LCS/1st Credit have already requested this, I do not feel it necessary to provide further reason.

Section C: Pre-Action Protocols
Here I'm having difficulty in working out what, if any, PAPs apply n this case. All the ones I've seen seem to relate to the Claimant, not the Defendant. What should I do here? Refer to my CCA request?

Section D: Case Management information
I have put down the amount of claim in dispute, which is the sum LCS/1st Credit are saying I owe them (over £7k)

I've ticked no under 'applications' as I haven't made any.

The only witness is myself, but I haven't a clue what to put down as to the facts I'm a witness to. Need advice here.

I've ticked No to all the 'experts' questions.

As to the right 'Track', well, it's over £5k so surely too much for small claims, and isn't this for the other side to decide?

Section E: Trial or Final Hearing
How long do I expect it to last? How long do they normally take?

Section F: Proposed 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, which the claimant seeks to rely upon
• 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
• 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.

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.

Section G: Costs
Left blank

Section H: Fee
Given that this whole matter arose due to my parlous financial state (following being fleeced in the divorce court), how much can I expect to pay in Fees? I might not be able to afford it, and it's worrying me. I'm not counterclaiming, btw.

Section I: Other information
I will attach documents, so YES
I will send copies to the other lot, so YES
I don't see how I can say when they receive them, as it'll be after the date of submission of this form...

I don't intend to make any applications in the near future.

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

So. What about it? Is it reasonable to request the small claims track in the other info? And what about the parts I'm struggling with? I've scouted around the forums but a lot of references are to N150s completed by Claimants, for charge recovery claims, and it's not directly applicable to me.