Advice requested regarding court threat **WON** Case Struck out

[Rilly]

Thanks pt and popeye for your posts. Pt, I think I've almost got my head around this now, except that I'm not sure which bit I should strike out of the Draft Order - is it bullet point one, relating to the CCA? If not, could you explain as if you were talking to someone of very low intelligence as I'm beginning to feel that my IQ has dropped to single figures...

[pt2537]

Hi Rilly,

 

i understand how you feel,

 

it is the first point that you need to change on the post 45 first part,

 

basically you are asking that they provide you with proof of cancellation notices etc which they are required to send with a cancelable agreement

 

if they cannot provide it then its game over,

[Rilly]

Sorry pt, I know I'm being thick but I still don't understand which bit I need to change. I'm sure I'm in a minority of one in this forum but I can't understand exactly what I need to alter.

 

Would you mind posting the first few words of the section I need to change and what I should change it to?

 

Sorry to be a pain.

 

Rilly

[Rilly]

Also pt, about this draft order for directions page, do I leave that as is? And is that all part of section G on the AQ or is it to be included seperately?

 

You did say fire away with the questions!

 

Thanks

[pt2537]

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

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

 

 

 

 

Between

 

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

 

and

 

xxxxxxxxxxxxx - 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 cancellation notice and other cancellation details as required by section 64 (1) Consumer Credit Act 1974

• copies of all documents referred to within the credit agreement including any terms and conditions

• 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 and 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.

 

 

2. 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.

 

 

 

 

 

 

 

 

 

print the above off onto an A4 sheet of paper

 

 

then in the BOX G on the actual allocation questionnaire

 

write the following

 

Please find the following attached to this allocation questionnaire;

 

1) Section G - other information

2) Draft order for directions

 

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

 

 

then finally print out the following again on A4 paper

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N149 Allocation Questionnaire

 

Section G - 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

 

 

 

obviously, you will need to amend the bits that are XXXXXX

 

regards

paul

[Rilly]

Many thanks pt, perfect for my scrambled brain. I loved the last line too!

 

I can get cracking with this now. Many thanks once again for all the help I've received from you and all the others.

 

I'll post again with any updates in due course.

 

Rilly

[Rilly]

Hi all. The latest update on my case is that on 110208 I had a General Form of Judgment or Order sent to me by the Court, and clearly the same thing was sent to the claimant. This ordered the claimant to send certain documents (copies of cancellation notices, all documents referred to withing the cca, full breakdown of sums allegedly owed etc etc), to the Court and me, and this had to be done by 270208.

 

Obviously that date has come and gone and I have received nothing, (except a letter from Cohen & Co saying they will accept immediate payment of £300 - £100 less than what they originally say I owe - naturally I'm going to ignore that).

 

I am assuming that the Court have had nothing either.

 

Anyway, I have to submit 'an amended defence sufficiently particularised in response to the documents supplied by the Claimant' within two weeks.

 

I believe this would be what is called an 'embarrassed defence'?

 

Would someone by kind enough, once again, to advise me on how to word such a defence please? I'm sure I could do it by referring to earlier posts, but this might not be the best way to go about it. Also, is there a particular form I should use or should I just send it in the form of a letter?

 

Any advice would be gratefully received.

 

Thanks in advance.

[pt2537]

Rilly

 

What did the order SAY word for word,

 

if it was a "unless" order or something along those line then you may be able to apply to the court to have their case slung out of court

 

the wording is very important here. obviously dont post up any account numbers or claim no's but if you can type the wording of the order that would be great

 

i can then advise you on the best way forward

 

 

kind regards

paul

[Rilly]

Hi again pt, thanks for taking a look. The exact wording is as follows;

 

Before DISTRICT JUDGE XXXXXX sitting at xxxxxx County Court, (address).

 

IT IS ORDERED THAT

 

1. The Claimant shall by 4pm on 27 February 2008 send to the Defendant and to the Court:

 

- copies of the cancellation notice and other cancellation details as required by section 62(1) Consumer Credit Act 1974

 

- copies of all documents referred to within the credit agreement including any terms and conditions

 

- Default Notice compliant with S87(1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI1983/1561) as amended

 

- Document, contract or deed of assignment and notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925

 

- Full breakdown of sums allegedly owing showing credit for payments received.

 

 

2. The Defendant shall by 4pm on 12th March 2008 file and serve the following;

 

- an amended defence sufficiently particularised in response to the documents supplied by the Claimant.

 

 

3. Thereafter file to be referred back to the District Judge for further directions.

 

Dated 06 February 2008

 

What do you reckon?

 

Regards, Rilly

[pt2537]

Hi again pt, thanks for taking a look. The exact wording is as follows;

 

Before DISTRICT JUDGE XXXXXX sitting at xxxxxx County Court, (address).

 

IT IS ORDERED THAT

 

1. The Claimant shall by 4pm on 27 February 2008 send to the Defendant and to the Court:

 

- copies of the cancellation notice and other cancellation details as required by section 62(1) Consumer Credit Act 1974

 

- copies of all documents referred to within the credit agreement including any terms and conditions

 

- Default Notice compliant with S87(1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI1983/1561) as amended

 

- Document, contract or deed of assignment and notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925

 

- Full breakdown of sums allegedly owing showing credit for payments received.

 

 

2. The Defendant shall by 4pm on 12th March 2008 file and serve the following;

 

- an amended defence sufficiently particularised in response to the documents supplied by the Claimant.

 

 

3. Thereafter file to be referred back to the District Judge for further directions.

 

Dated 06 February 2008

 

What do you reckon?

 

Regards, Rilly

 

well looks like the judge has accepted the Draft orders i wrote so thats good, i bet now they are frantically rushing around the office trying to find the docs;)

 

ok well,the order clearly states SHALL and they have not complied with the order,it leave little flexibility and is clear and unambiguous

 

therefore this needs to be drawn to the attention of the court

 

i will post up a suggested letter to send the court later, i believe that their claim should be struck out for their non compliance but lets wait and see

[Rilly]

Many thanks pt. I won't do anything for a few days. Maybe the Court will be in touch.

 

I'll keep you posted.

 

Rilly

[Rilly]

Still nothing heard from the Court, and still nothing from the Claimant. Is it time for me to respond, or should I be patient a bit longer?

 

Rilly

[pt2537]

In the xxxxxxx County Court

Claim no

 

 

 

 

 

 

Between

 

XXXXXXXXx

–V-

XXXXXXXXx

For the Attention of the Case manager

 

 

Dear Sir.

 

Further to the order made by District Judge XXXXXXXX sitting at the XXXXXXX County Court on XX January 2008

 

I note that the claimant has now failed to submit any documents supporting their case despite being ordered to do so and I therefore request that pursuant to District judge XXXXXX’s orders the claimants claim be struck out without further order

 

The claimant has had every opportunity to file such documentation and the size of the organisation, it is not unreasonable for them to have filed such documentation on time at the first opportunity, they have since been given a second chance to file documents by order of District Judge xxxxxxx and they appear to have ignored the Honourable Judges orders and have failed to comply as directed

 

The result of this failure is that I am unable to file a fully particularised defence to the claimants claim as directed by the Honourable Judge xxxxxxx as without the documentation which the claimant relies upon, I am unable to answer their allegations as set out in their particulars and I am placed at a severe disadvantage, as I am a Litigant in person

 

Therefore, I would request that the pursuant to CPR part 3.4, 2 © that the claim is struck out without further order

 

If this is not acceptable, then please refer this letter and the file to District Judge xxxxxxxxx to highlight XXXXXXX’s non-compliance with the orders dated xx xxx 2008 and for further directions to be issued.

 

 

Signed……………………………. (Defendant)

 

Date …………………………….

 

 

 

Amend to suit

 

send it to the court dealing with your claim via SD

[Rilly]

pt, many thanks once again, that letter seems to hit all the right buttons! I'll get it off asap and will let you know what happens. Thanks again. Rilly

[pt2537]

thread moved to the Legal issues forum

[Rilly]

Good news! A General Form of Judgment arrived from the Court today - the case has been struck out because the claimant did not comply with an earlier order! Woohoo!

 

Very many thanks to all who have contributed to this outcome, I am very, very grateful for all the excellent advice I have received.

 

Just one other thing; I still feel affronted that this firm have charged me all this money and didn't have the backbone/evidence to follow through with Court proceedings that they instigated.

 

Should I just be grateful that, with the help of this forum, I've got this far or should I continue with a counter claim to try to get some of the unfair penalties refunded? I'm not sure if this is a simple procedure from this point or not. Any comments would be welcome.

 

Thanks again,

 

Rilly

[pt2537]

Hi Rilly

 

Congrats on the result

 

i really not sure on what you should do mate with regards the counter claim. its really for you to make the decision and go accordingly with what you decide, its your decision ultimatley

 

of course if you decide to go ahead then i will help you along the way

 

im really pleased that you have had this weight lifted off your shoulders

 

Regards

paul

[Brassed off]

Well done Rilly That's excellent news!

 

Nice one Paul

[tomterm8]

Well done... no, I wouldn't issue a claim, unless the amount of charges is greater than the amount you owe. (in which case, I would send them/the original creditor a S.A.R. )

[robcag]

Congratulations Rilly, and also to all who helped you!

 

Rob

[Goldlady]

Excellent news Rilly - and thanks to Paul also. I am waiting to hear if my GE court claim has been struck out due to 26 months of missing statements and other irregularities.

 

I would be tempted to let sleeping dogs lie re the charges if you are about quits;).

 

If it is anything like my first GE claim you will probably soon get a letter from Link Financial - they seem to sell their failed court attempts on to them. So far I have completely ignored them:p They even sent us payment slips for £1 a month which is what we offered GE in the first place - which is how the claim was issued.

 

Anyway, well done, I will have a drink for you:D

[Newborn]

YEEEEEEEEEEEEEEEE ------------------ HAAAAAAAAAAAAAAAH !!!!!!!!!!!!!!

 

Newborn

[Rilly]

Thanks to everyone - I really appreciate the support. I'm going to have a think about further action in the light of the above comments. According to the records GE Money were able to produce (much of it is missing/unavailable) I have paid in the region of £350 - £400 for purchases totaling about £40. If I do take it further, I'll post to let you know how it goes.

 

Thanks again,

 

Rilly

[Goldlady]

Re my previous post Rilly - that does not seem to be "about quits".

[Rilly]

Thanks Goldlady, those are my sentiments at the moment too. Still mulling it over though. Will keep you all posted...

 

Rilly