Jump to content


Registered Users

Change your profile picture
  • Posts

  • Joined

  • Last visited

  • Days Won


Everything posted by foolishgirl

  1. Hmm...tricky one. Shoosmiths are quite right, they do not have to disclose that letter to you as you are not their client. However Cabot are (or were) so if Morgans are still asking for that letter I would refer them back to Cabot to ask Shoosmiths to send them the letter. I would also remind them that it is not your responsibility to chase documentation for the Claimant that has already been supplied to them & is (or should be) within their or their legal advisors' possession & that you suggest they get their house in order pdq & until they do so you are not prepared to enter into any more discussion or correspondence on the matter.
  2. Hi upsetandfrustrated I'm dropping in at gh's request as he is busy, busy today & I understand that you are already out of time on your filing an AQ. So in order to halt the process, you need to file a N244 app for Strike Out TODAY!! You can obtain the form here: http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf If you can't submit online, post it Spec. Del. TODAY. The fee should be £40.00 without a hearing I've not got time to read all your thread through but this is an app based on one taken from my files & I suggest you use it inserting your own amendments as necessary In Box (3) write: An order that this claim be struck out under CPR 3.4 (2a, 2b) as the Particulars of Claim (a) have not been sufficiently particularised to enable the defendant to understand what charges he has to answer & (b) the Applicant has never had maintained any account or agreement with the Claimant © the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award. The Defendant seeks an order that this claim should be struck out as an abuse of process and the Claimant be ordered to pay the costs of this application to be summarily assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975. In Box 4 write: 'Yes' In Box 5 write: 'Without a hearing' Ignore Box 6 In Box 7 write: 'None' In Box 8 write: 'District Judge' In Box 9 write: 'Claimant' In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write: On xxx the Defendant sent a letter to the Claimant requesting that they amend their Particulars of Claim by xxxx in accordance with Civil Procedure Rules so that the Defendant was able to identify the alleged case he had to answer in respect of this claim. To date the Claimant has not responded to this request. On xxx the Defendant sent a letter to the Claimant requesting under CPR31.14 further information & documentation under CPR31.14. The Claimant responded by sending a copy of an application form relating to a Monument credit card account but nothing relating to any alleged debt with the Claimant, Arrow Global LLC who seem to be a company registered in & trading from the USA. Sign the statement and complete the remainder of the N244. On a separate piece of paper to be attached to the N244: xxx County Court Claim No: xxxx Draft Order 1. This claim is struck out under CPR 3.4(2) by order of the court 2. The Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.
  3. It will be allocated to your local court & you will get a copy of any directions issued. If you don't get the directions you requested, suggest you make that app. but give it another 14 days or so before you need to get concerned.
  4. Do you mean Shoosmiths have admitted they have the letter but have refused to release it or do you mean Morgans won't release it? Without trawling your thread, have you sent off a CPR18 or a SAR request to any of the sols or Cabot? It wouldn't surprise me if this letter has been deliberately 'lost' in Morgan's files, particularly when you have already laid stress on them producing it . Was it a long time ago that your computer crashed? i.e. would it be possible to get a techy to try & recover the files?
  5. Zhan, I've not followed all your thread thro' so forgive me if this is not appropriate but in respect of costs you might like to note the Ministry of Justice Part 46 Fast Track Trial Costs, ‘46(2) where the value of the claim is more than £3,000 but not more than £10,000 the amount of fast track trial costs which the court may award is £690.' Re. costs incurred previously by them that have already been decided in your favour, IMO they are not entitled to claim again.
  6. I wish. You pay £75.00 if you apply for a hearing (or if the court decide it requires one), £40.00 without hearing. The difference between SO & SJ is that in the first the claim is dismissed, in the second you are asking for judgment to made against the claimant. IMO in your case, I think you would stand more chance of getting an SO than an SJ as the Claimant has not put forward a case for judgment to be decided against them. Small amendments suggested below: You should really apply for the costs of an app at the time of the app but no harm in sticking it in here. IMO if you get your SO, they will oppose it so don't count your chickens too early - they have 7 days after receipt of the order. Go for it gaz!
  7. I think in Brandon, it wasn't so much S98 that the creditor considered should apply but that they were relying on their own T&Cs to terminate & demand the balance without giving statutory notice
  8. Tee-hee Monty. Paddles & creeks come to mind.
  9. Hang on gareth.... You said at the top of this thread: And just posted: So are you now saying you found that termination letter & sent YOUR ONE & ONLY original hard copy off to Shoosmiths??! Pinch me please. Okay, back on my chair & assuming you haven't got a copy of that termination letter. If this the case, you also stated at the top of your thread: Did they sell the debt or just pass it on for collection? AFAIK Shoosmiths are not DCAs, just sols. Were Shoosmiths acting for Cabot, Online Finance, who?? But nothwithstanding that, they did pass it to Cabot who have instructed Morgans to act for them. Therefore the file that Shoosmiths had should have been passed to Cabot & then Morgans. So IMO you need to write back to Morgans & say 'you have that letter in your files, find it!' & without admitting that you can't find your copy.
  10. Misread it Rom - apologies. You are quite correct , it's the 11th for filing, chheck with the court on the 12th.
  11. Certainly is. Looks as though this DJ may be on the ball gareth You don't need to do anything other than keep tabs on it. Wait for the 28 days & then check with the court to see if a new POC has been filed. If you haven't received a copy fron Morgans, inform the court & ask them to send you a copy. Is this with Northants or your local court? If the latter, the beauty of this order is that the claimant MUST now attach the agreement or any other docs mentioned in the POC.
  12. No consequences but it is an order - it says 'shall' not 'may': so they have no liberty in the matter & if they have not complied you are quite within your rights to go for a SO.
  13. Have you looked at the OFT Debt collection guidance (Final guidance on unfair business practices) July 2003 (updated December 2006)? Also this letter: OFT Comments on True Copies THE CONSUMER CREDIT ACT 1974*- Sections 77 and 78 Summary* On request*and when accompanied by £1, a consumer has the right to:* a copy of their executed agreement* any other document referred to in it* a statement showing - the total sum paid under the agreement by the debtor* - the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due, and* - the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due. If the creditor is unable to give this information, he can state instead how the dates and amounts fall to be ascertained. The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original*mighthave been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan. Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection From Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice. In our view a debt collector who has bought the debt is the ‘creditor’ and as such takes on the liabilities of section 77. Under section 77(4), if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default (Decriminalised from 26 May 2008 on the coming into force of the CPRs). Legal Argument* A copy of the executed agreement Under the prescribed condition, section 77 of the Act requires the debtor to*(typo, she means*Creditor*I think)*‘...give the debtor a copy of the executed agreement (if any)....‘. The ‘if any’ most naturally refers to the exception for agreements older than 1985 (Not sure this is correct, "if any" was inserted to cover Verbal Agreements). Where a creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘1983 regs’) apply. Regulation 3(1) sets out the basic position that ‘every copy of an executed agreement... shall be a true copy’. Regulation 3(2) goes on to concede that there may be omitted from this true copy various information such as details which are not required to be in the agreement by law: the signature box, signature (it should be noted that sub-ss 3-5 of section 127 do not apply to agreements entered into after 1 April 2007.A Court may then, for example, enforce unsigned agreements if it considers it is just to do so.) and date of signature. In our view the effect of Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement. However, the copy does have to be a ‘true copy’. This is a technical term, which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a ‘true copy’ of the bill with the High Court. These cases come from the days before typewriters, when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security. Meaning of ‘true copy’* In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it*(In re Hewer ex parte Kahen*(1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in*Burchell v Thompson*[1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in*Burchell*at 105). Hewer, ex parte Kahen*- the filed copy of the bill omitted the precise day of the month on which payment was to be made. The court held this was trivial, and no debtor would be misled by it. Sharp v McHenry*(1888 )*LR 38 Ch.D. 427- the copy contained blanks which were not in the original. The court decided that the blanks were unimportant, since the omitted words were not required for the original bill to be valid. Burchell v Thompson*[1920] 2 KB 80 - the copy failed to include the words ‘per annum’ after the*interest*rate of 55%. The reader of the copy would have to guess whether the*interest*was per annum, per month or something else but as one could sensibly assume, correctly, that it was per annum it was a true copy.* Commercial Credit Company of Canada Ltd v Fuiton*[1923] AC 798 - suggested further that where there are a raft of smaller differences in a bill of exchange copy, this could prevent it being a true copy. However where the differences were such as to make the copy contract actually different to the original, the copy will not be true. Lord Sumner, speaking of the man who may wish to refer to the copy, concluded that ‘the Act promises him ... a true copy, not a puzzle. He is to inspect it, not to recover the original by a process of conjectural emendation’ (at 807). terms and conditions* Regulation 7(1) of the 1983 Regs requires that a requested copy of an agreement which has been unilaterally varied under section 82(1) of the Act, shall be accompanied either by the latest notice of variation or a copy of the terms and conditions as varied. Regulation 7(2) extends the principle to copies of varied securities supplied either to the consumer or the surety. debt collectors as creditors* A consumer credit debt can be assigned in two ways: in law under the Law of Property Act 1925 or in equity but in practice we need to be concerned only with statutory assignments. For a debt to be assigned in law, there are three conditions:* the assignment must be absolute. the assignor must make the assignment in writing. express notice of the assignment must be given in writing to the debtor (see section 136 of the Law of Property Act 1925).* The reason the debt is assigned is immaterial. For instance, books of loans may be sold on to be collected as an asset rather than as a discounted debt. In some instances, the*debt collector*may have purchased a debt but not have the relevant agreement. Whilst, in general, ‘liabilities’ cannot be assigned there must be a question mark over whether ‘duties’ are the same. This is important since there is a rule, expressed in*Tito v Waddell (No 2)[1977] Ch 106 at 289 to 302, that where a benefit is conditional upon some burden, the assignee must also take the burden. An example is where the contractor has the right to mine on condition that they pay compensation to those disrupted by the mining. If they assign their right to mine, the assignee takes this right subject to the duty to pay compensation. Therefore, there is a strong argument that under the Act, the right to payment is never absolute. It is always subject to duties (many of which are imposed under the Act). For instance, the right to enforce the credit agreement at all is subject to the duty to comply with section 77 or 78. This duty is not a ‘liability’ as such under the credit agreement but is a condition of the right to repayment. There has been a suggestion that debt collectors can avoid complying with section 77 and 78 by claiming that the agreement is no longer `live’ in some way as it has been ‘terminated’ based on section 103 of the Act. This talks of a ‘trader’ who was the creditor under a regulated agreement, implying that ‘trader’ is no longer a creditor once an agreement is ended. Section 103, however, deals with where the customer no longer owes any money at all and therefore it is correct to say that he is no longer a debtor and the trader is no longer his creditor. Where money is still owed, section 103 would not apply, since the consumer would not be entitled to a termination statement. The first issue on when the*debt collector*becomes the creditor is relatively simple. Section 189(1) of the Act defines ‘creditor’ as ‘the person providing credit under a consumer credit agreement*or*the person to whom his rights and duties under the agreement have passed by assignment or operation of law.’ Where the debt collector is not acting as the creditor’s agent, or otherwise on his behalf, the only legal basis he can have for demanding payment from the debtor is if the creditor’s rights and duties have been assigned to him. Therefore we can be reasonably confident that a debt collector who has bought the debt is the ‘creditor’. Unpalatable though section 77 and 78 may be for some creditors, if the debt collector is unable to prove the debt, they should be more careful about the debts they buy. They cannot complain that the sections are somehow unfair as it is in the Act and so must be complied with. It is up to them to ensure they purchase and maintain sufficient records to be able to prove the debt and comply with the other requirements of the Act. Misleading statements to debtors* Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the*debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act. Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice. The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor. Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs). Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it. Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement). In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.* May 2008 Susan Edwards* Head of Credit Investigations and Enforcement, Office of Fair Trading* You may also find this thread interesting: http://www.consumeractiongroup.co.uk/forum/showthread.php?93663
  14. Dropping in as requested I wouldn't be happy with the costs clause or the clause allowing redetermination by the Claimant at a later date. COs are binding on both sides for the duration of the order unless you default. So if they want an increase at a later date, they must apply to the court for it. I would also want to see something in there about not assigning the debt to any third party & a time to be allowed between any default & application for enforcement. IMO this all sounds a bit too woolly & too much in favour of the claimant. I haven't time to read all your thread but if you are unsure, get a solicitor to look through it & give you advice. It won't cost much & could save you a lot in years to come. Don't let them hassle you re. time for return - standard trick. A CO can be submitted any time up to hearing date.
  15. Well, I certainly do!! This is like saying 'we'll just keep on issuing anything that might resemble a reconstruction until we GUESS!! it somewhere near right' . What happened to S77/78 requirement for true copies? I'm not asking for exact, just true. How can they possibly be true copies when each one is different?!
  16. How, Monty? Have I missed something? Are you possibly referring to the fact that they applied for a stay without your permission? If so, not sure that would be a SRA matter, it's just a breach of the CPR.
  17. They do like to drag it out don't they? Poor Fred. Do hope it's the result he deserves.
  18. I agree Debbsy. Not only are consumers wising up to the tricks of the DCAs & the pitfalls of the court processes but the DCAs are becoming more aware too & the DJs seem to be taking a tougher line on the burden of proof. Unfortunately a lot of them seem to think it's up to the Defendant to prove the Claimant has no case & not the other way round.
  19. Ah, forgotten it was SCT but CPR18 would apply, wouldn't it gh?
  20. Dropping in as requested gh. This is a dilemma isn't it? Go for directions on the AQ & risk not getting them or go for an app for disclosure of docs you know they can't produce but risk alerting them to the POC & allowing them to file an amended one. Hmm... it's a gamble either way methinks. My inclination would be to hedge my bets i.e. file the AQ with carefully worded directions & then if I didn't get them, file the app. As far as I can see, although the contents of the defence are not 'correct', it does answer the POC (which are also incorrect!) & this is an LIP - how is she supposed to know how to respond to a garbled claim? Can you also clarify the following, avamaria: 1. Have you sent a SAR to Nat West enclsoing £10.00 & requesting statements & an 'agreement'? Your final defence will possibly depend on showing that the amount is made up of unfair charges & you need those statements to prove that. 2. You said in an earlier post: Refusal of service is not usually an option with an SD & after it is served, you must respond quickly to it. So who tried to serve it - was it by post, by hand, did someone phone you first before they called?? And how long ago? The reason I ask is that usually the creditor goes for an SD instead of a CC claim not both.
  21. I am not going to join in a slanging match, consumeredge, but I agree with most of what gh has stated. 1. When you submit a N244 you are the applicant, the other side is the respondent, no matter what the description of each in the original claim/hearing. IMO the court will overlook misnaming & it may be nit-picking but gh is correct 2. In your experience, Cohens may not travel far from home but that does not prevent them sending 'their representative' from a local company of solicitors wherever in the country that may be 3. gh is correct in his statement that appeals can be expensive if you lose & that goes for CC level aswell as COA level as the loser has to bear the other side's costs which may be that of a barrister, not just Joe Bloggs solicitor from down the road 4. I think gh has been very supportative of Hillards (as have other CAGers) but Hillards has sought advice on behalf of someone else & he has not posted any docs (as far as I can see) which makes it extremely difficult to assess the case. eg. gh is correct in that a Notice of Hearing should have been sent. I suspect it was as otherwise the 'lady' & Hillard wouldn't have known a date - hence my comments above re. attending court when a date is set. We are all aware that relaying a story from someone else can be a bit like chinese whispers even if no-one intends it to be so. Therefore gh was right to be cautious in the advice he proffered. You were obviously fortunate in the outcome of the case for your relative, consumeredge, & I am pleased you are proud of your result. However you must recogonise that not all cases are the same or text book & gh is just trying to play devil's advocate with an unusual situation for the poster's benefit.
  22. Phone the court first but bear in mind that they are sometimes behind on recording the post they receive so ask. Then if no amended POC submittted, make your app on a Form N244: http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf It will cost you £40.00 without hearing unless you are exempt from fees in which case you also need to fill in the claim form for that too.
  • Create New...