HELP - County Court Claim ** WON** they discontinued

[Docman]

Arrow may have one or two other things on their mind at the moment. Here's part of an article I posted on another thread (with grateful acknowledgment of 42man who found the reference)...

 

"Commerce Commissioner takes action against collection agency

 

For Immediate Release: November 28, 2005

Sallie Mae entity pays record civil penalty; will design compliance plan

(St. Paul) - A year-long Minnesota Department of Commerce investigation into the practices of a collection agency owned by Sallie Mae has resulted in the largest civil penalty ever imposed against a collection agency licensed in Minnesota. Minnesota Commerce Commissioner Glenn Wilson announced today that Arrow Financial Services LLC of Niles, IL has paid $125,000 and will design and implement a compliance program within 60 days.

"The laws regulating collection practices in Minnesota are intended to protect consumers and we expect full compliance from collection agencies that do business here," said Commissioner Wilson. "This company says it provides courteous and professional service, but they missed the mark. The violations are serious and we cannot and will not tolerate this type of activity in Minnesota. That's why a comprehensive compliance plan is part of the consent order."

The compliance program will be reviewed and approved by the department and must include:

• Designation of a compliance officer in charge of all regulatory compliance matters. The compliance officer shall report directly to the President and Board of Directors.
  
• A training program for all of Arrow's debt collectors registered in Minnesota to specifically include the Fair Debt Collection Practices Act and Minnesota debt collection laws.
  
• Arrow's Minnesota registered debt collectors must sign a statement wherein the debt collector acknowledges that they have completed training and that the training included debt collection law.
  
• Arrow will establish written policies and procedures for screening debt collector applicants prior to submitting registrations. The system will include a criminal background check.

Arrow is a part of Sallie Mae, a company that primarily provides federal and private student loans. Sallie Mae was originally created as a government-sponsored entity, but terminated corporate ties to the federal government in 2004. In addition to student loan debt, Arrow collects credit card, utility, telecommunication, retail and automotive debts.

The Department of Commerce investigation alleged that Arrow and/or its collectors engaged in more than 15 violations of Minnesota law, including:

• Withdrawing money electronically from a debtor's checking account without authorization and after two separate requests by the debtor to stop. Arrow also collected more money than the creditor had authorized.
  
• Continuing to contact debtors at their places of employment after receiving notification to stop. In one case, a debtor sent 5 letters (3 certified) and 3 emails that specifically stated that the debtor's employer prohibited phone calls at work. Arrow also falsely told a debtor that such requests had to be in writing.
  
• Disclosing a debtor's information to a third party - in this case, a co-worker at the debtor's place of employment was told about the debt and Arrow's attempt to collect.
  
• Failing to establish procedures when screening collector applicants prior to submitting to the commissioner for registration as required by law. In one case, Arrow submitted a debt collector registration to the department that included documentation that showed the applicant did not qualify for licensure due to a recent felony conviction. Arrow also allowed an unlicensed debt collector to contact a Minnesota debtor prior to receiving a debt collector license.
  
• Failing to respond to the department's request for information, failing to provide responses from individual debt collectors and failing to provide copies of the debtor work logs. Arrow failed to respond to initial contact letters and certified letters from the department requesting responses to several complaints in violation of Minnesota law."

Might also be useful reading for the judge in your case.

[colin66]

i i

[EVS2108]

Hi,

 

I have received a notification of transfer & an allocation questionnaire from the courts. Can anybody help me complete this please? I still have not heard anything from Arrow after the requests I sent them.

 

Thanks

[pt2537]

Yeah, not a problem

 

did they disclose any documents? Credit Agreement?

 

also what allocation questionnaire is it?

 

is it a N149 or N150

[EVS2108]

Thanks, Its a N150, Ive had nothing exept that form. I sent the requests to Arrow in early november but have received nothing back from them>

[pt2537]

ok here we go

 

 

 

 

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
  
• 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.

 

 

XXXXXXXXXX -v- xxxxxxxxx

 

Claim No: xxxxxxxxx

 

N150 Allocation Questionnaire

 

Section H - other information

1. 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;

 

Furthermore, it is drawn to the courts attention that i requested disclosure of the credit agreement and other documentation as set out in the draft order in November 2007 and to date the claimant has failed to comply with this request and the failure to supply the requested information has significantly affected my ability to prepare any defence to this action and is extremely frustrating

 

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 ruling

 

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.

 

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

 

 

i will pop back later with info on how to fill out the main questionnaire

[EVS2108]

Thanks for that.

[clutchingatstraws]

Subbing and wishing you luck EVS

[pt2537]

 

Section A - Settlement

tick no

 

Quote:

Section B - Location of Trial

tick yes, in the box put that you respectfully request the case be heard at your local county court wherever that may be as you are a litigant in person

 

 

Section C - Pre-action protocols

 

tick no in part 2, and on a separate piece of paper, state that you have asked for disclosure of documents from the claimant and they have failed to comply therefore you cannot as yet supply anything in return until they comply

 

 

Section D - Case management information

amount of claim in dispute, you should be able to answer that

 

Applications

tick no

 

 

Witnesses

yes you so enter your details as a witness of fact

 

 

Experts

 

Tick no

 

 

Track

tick small claims as long as the claim is below 5000

 

 

 

Section E - Trial or final hearing

1 hour for reading 1 hour for the hearing

 

if there are any days you are not available let them know

 

Quote:

Section F - Proposed directions

Attach the list of directions, if any, you believe will be appropriate to be given for the management of the claim

 

Section G - Costs

 

leave blank

 

 

Quote:

 

Section H - Other Information

 

 

 

 

now under section H other information

 

write the following

Please find the following attached to this allocation questionnaire;

 

1) Section H - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the Claimant on **/**/**.

 

 

 

so print off the draft order and other info from post 31 and attach it to the AQ

 

and send a photo copy of the allocation questionnaire to the other side as a courtesy

[Docman]

I'm not being picky but shouldn't the last section be

 

"This allocation questionnaire and its attachments were sent to the claimant on **/**/**."

[pt2537]

eeek

 

yeah,i used C&P from an old document where i was the claimant,

 

i guess thats what happens when you C&P stuff,

 

the Directions i wrote myself so they should be ok,

 

Cheers Docman for picking that up

[Docman]

The directions and everything else is fantastic.

[EVS2108]

Pt2537,

 

Thanks for you help. I hope this works because I don't need the stress at the moment. In the middle of having IVF, they couldn't have picked a worse time to hassle me. Once again thanks for your help and everyone else who has contributed.

[pt2537]

Hi There

 

well we can but try, the problem is that some judges will agree and others wont so its really all down to luck now, that said, no credit agreement is a full defence to their action

 

i hope this helps

 

regards

paul

[EVS2108]

HI there, The questionnaire has been sent. I have received this letter from Arrow in reply to my requests sent to them. Letter dated 21/1/2008

 

Thanks for your letter dated November 13th 2007

 

Unfortunately you have not put your account number on the above mentioned letter. Therefore, due to data protection, could you please resubmit your request and note the account number that you are refering to. Once this is done, I can forward your request to Paragon.

 

This was received 2 1/2 months after i sent it to them, I don't know my account number but surely they should have this as it would have been passed over by Paragon when they aquired the debt? Do I have to respond to this letter? What is the score with the ruling that they should have replied within 1 month or they commit an offence, where do I stand here.

 

Any advice grateful

 

Thank you.

[sillygirl1]

They're playing games - did their letter to you have Paragon's reference on it - NO - so you can use this in your defence.

[EVS2108]

Hi,

 

I have just received a letter from the courts saying,

 

District Judge P Evans has considered the statements of case and allocation questionnaires submitted in this claim and has decided that a hearing is necessary before a final decision of allocation can be made.

 

District Judge P Evans orders you to attend at 14.20 on the 3 March 2008 at Swansea County Court, Swansea Civil Justice Centre, Quay West Parade, Swansea, SA1 1SP. TIme estimate 20 minutes.

 

Can anybody tell me what this means please.

 

Thanks.

[pt2537]

It seems that you have an allocation hearing, this will be a hearing in the judges chambers to consider what track the case should be allocated to and what directions are needed to be issued.

[colin66]

wrong thread

[EVS2108]

Hi,

I am in court on Monday for an allocation hearing, Arrow have not supplied me with any of the information that I have asked for. What do i need to say in court? PLease Help me!!!!!

[EVS2108]

Can someone offer me advice please??? Im desperate!

[pt2537]

Ok, Firstly, Stop panicking

 

now a Allocation hearing is to establish the track which the case is allocated to

 

it is not the final hearing,

 

i will look in later to go over the basics as i need to read through your thread to see whats happened

[N.P]

Hi Evs and Paul,

 

Just popping in to offer my support on this one.

 

Evs, your in excellent hands with Paul matey, he`s offered some serious advice and helped hundreds if not thousands of people through their dark times. I wouldn`t like to go against hime.

 

Just keep calm and stick to the plan your given and you`ll come out on top.

 

I`ll be watching with great interest on Monday to see what happens.

 

Good luck!

 

Regards

 

 

N.P

[pt2537]

Right sorry for not getting back to you yesterday, i have a heavy work load on at the mo

 

now then,

 

at the directions hearing , it will be a fairly informal setting, normally you will be sat in the judges chambers,its a small room usually and is not the full court. you should be polite to the judge on entry to the room, "Good Morning Sir / Madam" the judge does not hold a title if hes a District judge so no need for " Your Honour" or anything like that

 

now the purpose of the hearing is to decide what track the claim should be allocated to and what directions (orders) the judge needs to give out to help deal with the case

 

you should point out that as a Litigant in person, you have asked for information to enable you to prepare a defence to this claim.

 

point out that so far the claimant has failed to supply the information and it has left you in a position where you have been unable to file a fully particularised defence to this claim.

 

you should point out that the claim is based on a credit agreement and that under the Consumer Credit Act 1974 unless the claimant can produce a copy of that credit agreement before the court containing the prescribed terms as set out in Schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed by the creditor and debtor then the claimant cannot seek to enforce the agreement and with all due respect to the court, the court would be precluded from enforcing the debt under the Consumer Credit Act 1974 section 127(3)

 

 

also point out to the judge that the claimant has made an error on thier particulars of claim as they are claiming that the agreement is regulated by the CCA 2006. this is wrong!!!!! it is under the CCA 1974 and what you need to do is take a print out of this page

 

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=consumer+credit+act++2006&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=2459360&ActiveTextDocId=2459451&filesize=643

 

in particular this part

 

• 11 The repeal by this Act of—
   
  (a)the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,
   
  (b)subsections (3) to (5) of that section, and
   
  ©the words “or 127(3)” in subsection (3) of section 185 of that Act,
   
   
  has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

this confirms that where an agreement was made before the CCA 2006 came into force the CCA1974 has full effect and section 127(3) is not repealed by the CCA 2006 for agreements made before 6th april 2007

 

 

you should askj the judge to order that the claimant supply to the court and you, a copy of the credit agreement,a copy of the default notice they sent (this is needed to show they have followed statutory procedure) and full statements of account to show how the balance of the claim was calculated

 

as the judge that if he / she orders these documents be supplied then you respectfully request permission once you have recieved them to submit a amended defence 14 days after they have supplied the documents

 

 

ok any questions?

[EVS2108]

Thanks Paul, Youv'e been a great help. Ihope to receive some more good news tomorrow on top of the great news that my wife's IVF has worked! I will keep you updated after court tomorrow, Once again thanks for al your help and to everyone else.