Phoenix/Cater Claimform - Joint LTSB OD Debt **WON - DISCONTINUED**

[madi's mum]

Hi All

 

This is my first post as I am new to this but so far have found this site really helpful in challenging a court case brought against my partner and I.

 

We have a debt of c.£18k which was originally incurred with Lloyds TSB as a personal overdraft on a joint account about 3 years ago, having been passed from debt collection agency to debt collection agency we finally had court papers issued by Bryan Carter & Co Solicitors on behalf of Phoenix Recoveries (UK) Ltd.

 

Just for the record we don't dispute the majority of the debt, but as it all went down whilst our business was failing we have no idea how the final figure has been reached with regard to penalties and charges incurred. Also, don't particularly want to pay it back to a company who cannot / will not offer us proof of debt.

 

I acknowledged the claim with the court within the time specified and sent Bryan Carter & Co Solicitors a Request for Information letter by Special Delivery as per a template found on this site.

 

Nothing came back from the solicitors in the given time so I had to lodge an 'embarrassed defence' again as found on this site.

 

I have now received an Allocation Questionnaire which has totally thrown me - I have no idea how to fill it in - I'm hanging my defence on the fact that they have given me no proof of debt despite my request - without the paperwork they seek to rely on I am unable to make my case.

 

I have found some good info on here but most of it is for credit agreements such as cards and loans and this is for an overdraft which I believe is treated differently.

 

Just to add to the pressure I need to have this questionnaire in by Friday 5th September.

 

Hope someone can offer some help?

 

Many thanks in advance

[meanbean]

see if the following post helps. It discusses the two types - N149 and N150

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html#post90319

[42man]

This one may assist you too...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

[madi's mum]

Thanks for those - I'm still struggling but i will have a go at filling in my AQ and will post it here for critique.

 

I do have some more questions:

 

Can I ask for this to be dealt with in the Small Claims Court even though it is c. £18k as the case to answer is very straight forward, we have received no proof of debt from these people?

 

Also, do we have to pay a fee for each of the AQs as both my partner and I have been sent them with the same case number?

[AndyOrch]

Hi Madis Mum

 

Is it the N149 or N150 you have recieved?

I would summise its the N150 because of the value of the claim this will be allocated to fast track.

 

Regards

 

Andy;)

[madi's mum]

Hi Andy

 

its the N150 - any help with this would be much appreciated - feeling very much like i have bitten off more than i can chew with all this but still don't feel much like handing over hard earned cash to this bunch if i can help it.

 

thanks

 

Madi's Mum

 

[AndyOrch]

Ok

 

Without knowing all your details or defence submission and what has been furnished or not I can only give you a guidence on how to complete said AQ as this would depend on what the argument of your defence was.I will post up shortly and you can edit to suit you claim

 

Regards

 

Andy

[AndyOrch]

The 1st Q, doesn't have a number, it asks have you sent a copy to other parties...tick yes.

 

A. Settlement-tick yes

B. Location -tick no

C. Pre-action Protocols-Part one-don't tick anything

Part two-tick yes

Case Management Info

State the full amount of what they are claiming in the bo

Applications-you haven't made any-tick no

Witnesses- if it is a joint debt put both of your names

Witness to which facts- All facts in the case

Experts-only the 1st Q is applicable about calling experts-tick no. The rest of that page you can leave blank

Track-can't complete without claim value

E.Trial/final hearing

Time estimate 4 hours

Days you won't be able to attend. Obviously I don't know that info. If you have holidays, other relevant important dates in the next 4mnths, I would detail. The Crts are quite flexible about this, so don't think you have to cancel things. If you're unavailable, say so.

F. Proposed Directions- no to both Q's.

G. Leave blank

Other Information

Attached docs-tick no

Sent to other party-tick no

If yes.....etc-leave blank

Do you intend to make applications in immediate future-tick yes[/font]

If Yes what for-An Order seeking the Claimants compliance with information previously requested.

In the big box underneath I intend to write how the Claimants are behaving, so I will do that shortly.

Sign and date (teaching you how to suck eggs-sorry!)

Under the signature box put little lines through everything except the number one and Defendant.]In the box underneath that, put your address, tel no and don't forget your p/code (Crt gets funny if people omit it!) You can include your email if you wish.

[AndyOrch]

Under track tick the Fasti-track box.

In the other information box write the following, but not yet, in case you provide me other info, that requires me to tinker with it!

 

The Claimants are deliberately frustrating these proceedings and preventing me from submitting a counter-claim, by refusing to provide information first requested under a Subject Access Request on the xxth xxxxx 2008. They have only partially complied with my request. I have sent letters to the Claimants Solicitors on the xxth xxxxx repsectively, requesting the outstanding information, which has to date not been furnished. I believe this is entirely unreasonable behaviour and I will shortly request an Order from the Court compelling the Claimant's compliance, to enable me to file a counter-claim

[AndyOrch]

The Court expects each party to file their AQ at Court, and each party is required to serve a copy on their opponents. The exchange of documents between parties, is expected from the beginning of the case. So that would include AQ's, disclosure statements and pre-trial checklists as an example. AQ's are not confidential and if you don't send your opponent a copy, chances are they will file an Application Notice looking for your case to be struck out. The offending party would then receive a further Order giving them a last chance to serve the AQ by a specified date. If it's not done, the non-compliant party would lose the case.

 

If they haven't complied with Court Directions, that tells you they are highly unlikely to even turn up to argue their case! You have complied, so even if they did turn up, you can point out to the Judge all the things they have neglected to do! You might resent having to send things off their sols and file stuff at Court, when they're doing nothing, but if you're doing things right, nobody can fault you on your efforts can they?

 

 

I trust the above is of help

 

Regards

 

Andy;)

[madi's mum]

Hi Andy

Thank you so much for taking the time to do this - with regard to the other side supplying the requested information we both sent separate letters by special delivery to them on 24th July 2008 requesting further information as follows:

In the Northampton (CCBC) County Court

 

 

Phoenix Recoveries (UK) Ltd S. Re: Phoenix Recoveries (UK) LIM Re: Fredrickson Recoveries

-v-

xxxxxxxx

 

 

Claim Number: xxxxxxxx

 

 

Dear Mr Carter

 

REQUEST FOR INFORMATION

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

 

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

 

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Lloyds TSB

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

 

 

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

 

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

 

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

 

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

 

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

_____________

To date we have received nothing from them, not even an acknowledgment of this request.

Also i have included below the Particulars of Claim as appeared on each of our claim forms:

The claimants claim is for the balance due under an agreement which is now all due and payable.

The defendant agreed to pay monthly instalments under account number xxxxxxxxxx but has failed to do so.

And the claimant claims the sum of £18148.61

The claimant also claims interest thereon pursuant to S.69 County Court Act 1984 Limited to one year to the date hereof at the rate of 8% per annum amounting to £1050.13

Hope I've done the right thing so far?

 

Cheers

 

Madi's Mum

[AndyOrch]

Yes thats fine.Not unsual for them to ignore your CPR 18 request.I take it you submitted a basic holding defence did you refute the Sec 69 interest point?

 

 

Andy

[madi's mum]

The defence I submitted for both of us was as follows:

DEFENCE:

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

Missed the Sec 69 interest point as am not sure what that point may be!

[AndyOrch]

I use this in my defences to cover the above should the claimant try for section 69 interest in their P.O.C

 

 

Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. It is therefore averred that this claim is brought in relation to a personal loan which is credit as defined within the Consumer Credit Act 1974, the defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons

[madi's mum]

Just going back to what needs to go in the other information box should I complete it as follows?:

 

The Claimants are deliberately frustrating these proceedings and preventing me from submitting a counter-claim, by refusing to provide information first requested under a Subject Access Request on the xxth xxxxx 2008. I believe this is entirely unreasonable behaviour and I will shortly request an Order from the Court compelling the Claimant's compliance, to enable me to file a counter-claim.

Also, do I need to qualify my request for Fast Track as opposed to Multi Track given that the amount in dispute is over £15k?

[AndyOrch]

Hi Again sorry for the delay

 

The above are only guidlines you may not wish to settle you may wish to issue Directions and which are very available to you via Fastrack/Multitrack.Tick multitrack and in the other information box change the S.A.R request to CPR 18 request as in your case

 

Regards

 

Andy

[AndyOrch]

Do you know roughly what the penalty charges are? Have you ever requested a S.A.R? Have you ever recieved a default Note.?

And most imprtantly have you ever recieved a NoA (Notice of Assignment) All the above must be taken into consideration at AQ and whather or not you may wish to issue Directions/Disclosures.

Its not that quite straight forward coming into a case at AQ stage as I am sure you appreciate

 

Regards

 

Andy

[madi's mum]

Andy - totally understand that this is probably a bit late in the day to be asking all these questions - sorry been suffering with the Ostritch Syndrome!

 

I don't know what the penatly charges are, have never requested a S. A. R. I did receive a default notice from Lloyds dated 17.03.06 and finally don't recall receiving a NoA.

 

Do you think I might be better to give up the ghost and make an offer even though they haven't proved their right to pursue the debt?

 

Once again thanks for your input on this.

 

Cheers

[AndyOrch]

I certantly dont advise you to throw in the towel you can still pull this back at this late stage

 

Ok in the AQ Settlement =no

Directions yes and request a copy of the NoA/Statements etc you can see in the stickys how to template a draft direction.I would also mention lack of NoA in the other as well as a copy will goes straight to the Claimant and visa vera and if they think they are on sticky ground they will discontinue IMHO.You need to do a little back tracking but im sure you can turn this round.complete your AQ as advised and then look at how to prepare your direction/disclosures and get it off to court.You have 2 days almost so its not impossable.

 

Good luck in your case and if you require anything further i will be online tomorrow,

 

Regards

 

Andy;)

[madi's mum]

Andy - help to date VERY much apprciated - I'll endeavour to get the whole thing prepared by tomorrow evening for you to review if that's OK - sleep tight!

 

Madi's Mum

[AndyOrch]

No problem thats what CAG is all about just wish we chatted earlier in your case.I will check your final Directions tomorrow been a long day.

 

Try not to worry.

 

Regards

 

Andy;)

[madi's mum]

OK - here is my effort to complete this:

 

ALLOCATION QUESTIONNAIRE

 

Have you sent a copy of this completed form to the other party Yes

 

A. SETTLEMENT

 

For All

 

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage?

 

No

 

Reasons: Without production of the requested documents, I am at a disadvantage and am unable to negotiate a settlement without the full facts.

 

B. LOCATON OF TRIAL

 

Is there any reason why your claim needs to be heard at a particular court? NO

 

C. PRE-ACTION PROTOCOLS

 

You are expected to comply with the relevant pre-action protocol.

 

Have you done so? No

 

If No, explain why?

 

This case is not covered by any approved protocol; I have tried to act reasonably in exchanging information and documents relevant to the claim but have had no response from the claimant in this regard.

 

 

 

D. CASE MANAGEMENT INFORMATION

 

What amount of the claim is in dispute? £19,198.74

 

Applications

Have you made any application(s) in this claim? NO

 

Witnesses

 

Xx xxxxx All the facts in the case

XX xxxxx All the facts in the case

 

ExpertsNo

 

TrackFast Track

 

If you have indicated a track which would not be the normal track for the claim, please give a brief reason for your choice:

 

Its is respectfully requested this case be allocated to the Fast 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.

 

 

E TRIAL OR FINAL HEARING

 

How long do you estimate the trial or final hearing will take? 4 Hours

 

Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or hearing? YES

 

Xxxx xxxxx 1st – 14th October Inclusive.

 

F PROPOSED DIRECTIONS

 

Have you attached a list of the directions you think appropriate for the management of the claim? Yes

 

If Yes, have they been agreed with the other party? NO

 

G COSTS

 

Leave blank

 

H Fee

 

I OTHER INFORMATION

 

Have you attached documents to this questionnaire? YES

 

Have you sent these documents to the other partyYES

 

If Yes, when did they receive them?

 

Do you intend to make any applications in the immediate future?YES

 

If Yes, what for?

 

An order seeking the Claimants compliance with information previously requested.

 

In the space below, set out any other information you consider will help the judge to manage the claim.

 

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

 

Its is respectfully requested this case be allocated to the Fast 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.

 

___________________

 

DRAFT ORDER FOR DIRECTIONS

 

 

In the ************* County Court

Claim number **********

 

 

Between

 

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

 

 

 

and

 

 

xxxxxxxxxx - 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, which the claimant seeks to rely upon.
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer 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.

 

_______________

 

Any feedback gratefully received.

 

Madi's Mum

[AndyOrch]

Hi

 

Excellent what a difference a day makes and you wanted to throw the towel in yesterday.Ok get that off 3 copies dont sign the Claimants copy print name One to the Court obviously and retain one for yourself

 

I wish you well with your case

 

Regards

 

Andy;)

[madi's mum]

Andy, thank you so much for your words of encouragement - truly could not have done this without you - will update this thread with outcome.

 

kindest regards

Madi's Mum

[42man]

Great work Andy !!