HUMBLEMAN vs HFC-WEIGHTMANS COURT ACTION

[pt2537]

i would say yes, its a key reference to a case that supports the arguement that a valid default notice is required before they can demand repayment of monies etc

 

with regards to a counter claim? what grounds were you thinking about C/Claiming on?

 

with regards to default removal that is something that can be addressed later IMHO

[humbleman]

Tanks Paul

 

sent my defence recorded to Northampton, today

[goorooji]

Excellent posts, very interesting, i wonder if someone could have a look at my thread,

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/135558-help-court-summons-restons.html?highlight=restons

 

against Restons/HFC, i have a deadline to defend till the 27th March.

 

Any help much appretiated.

 

Goorooji

[humbleman]

Received a letter this morning from Weightmans, with a copy of letter they sent to court, saying

 

we refer to the defendants defence and confirm that our client doesn't wish to accept the same, accordingly the matter should continue as a defended claim.

 

What are they on about

[pt2537]

normal stuff,

 

they are served with the defence from the court and are given time to decide if they wish to continue or not

 

they obviously feel they can take the case to court (silly people)

[geoffmr1]

Hi Humbleman,

 

I've had exactly the same response today as well!! They also said they will answer my defence with the AQ.

 

I assume your case like mine was to be stayed next week?? I take it they are trying to buy more time to find our CCA's or worse (faking our CCA's)

[humbleman]

Hi Geoff

 

I had a glance at your thread and saw you posted this earlier today.

 

In My case I know they got nothing except for a illegible document.

 

I am really looking forward to seeing this guys in court

[humbleman]

This morning got a letter from court that the case has been transferred to my local, together with the AQ.

 

Now Weightmans has not even bother to supply anything following my CPR request.

 

I am thinking should I make an application to strike out and removal of default, unless they provide the information.

[pt2537]

that's something that only you can decide on mate,

 

judges don't tend to strike out claims readily so it may be successful it may not. i guess it all hinges upon the strength of your case and the judge that deals with it

[humbleman]

Still nothing from Weightmans after my CPR request 2 months ago.

[cashins]

Anything?

[humbleman]

nothing from Weightmans, need to get my AQ to the courts by the weekend

[humbleman]

Some advice needed to fill the Allocation Q. N150.

 

Just realised need to drop this in today

 

Bearing in mind that Weightmans have not sent anything further to my CPR request and HFC have only sent me an illegible agreement in reply to my request last February, what do I fill in the following question

 

under Case Management I have ticked Small Track what reason can I put for this since the amount they claim is around £18k

 

What do I need to fill in F Proposed Directions.

[pt2537]

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,
  
• fully particularised breakdown of how the figures claimed accrued including details of any late payment charges
  
• 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.

 

 

Ok, as for the actual directions i would suggest that you print the above out on A4 paper, amending the name and claimant details etc,

 

i will be back after the school run to go through the rest of it

[humbleman]

as always quick on the draw Paul thanks.

 

Can I also add to this a bt about them removing any adverse information from my credit files.

 

Do I just print and send this off with the AQ and/or make a seperate application, is there any fees payable.

[Hopeful1]

Hi Humbleman.

 

Paul's link here helps with the presentation of the AQ.

 

My understanding is you only need to pay fees if you are making a counterclaim - check that though i may be wrong!

[humbleman]

Thanks Hopeful

[pt2537]

as always quick on the draw Paul thanks.

 

Can I also add to this a bt about them removing any adverse information from my credit files.

 

Do I just print and send this off with the AQ and/or make a seperate application, is there any fees payable.

 

No there are no fees payable, i will draw up some other information for the Section I other information part of the AQ

 

you just attach the docs i post to the AQ on seperate paper but we will make a reference to them on the actual AQ itself so you wont need to make any applications

 

now, what questions are you ok with and what ones do you need help with, ask away:)

[humbleman]

Paul

I am going to fill the AQ I got on line

 

I need to fill a bit about why it should go for Small track

 

under proposed direction do i fill yes where it say 'have you attached list of direction'

 

What do i fill under I other information

[pt2537]

Please find the following attached to this allocation questionnaire;

 

1) Section I - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008.

 

in box I on the form itself, put the above

 

and

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N150 Allocation Questionnaire

 

Section I - 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 it will inhibit the courts ability to deal with the case

Also the claimant has failed to show how the figures claimed are calculated, no particulars are offered as to how many penalty charges are included within the figure or what contractual provision the charges are made under, again until such information is provided I cannot reasonably plead to the claimants claim

It is important to note that this is a claim brought under the provisions of the Consumer Credit Act 1974. Since this is a Consumer Credit Case relating to a Consumer Credit Agreement Regulated by the Consumer Credit Act 1974, for the court to consider enforcement of such an agreement, the agreement must be produced before the court, and further more, for the court to be able to consider enforcing such agreement, the agreement must be in compliance with the Act and inter alia the Consumer Credit Agreements Regulations 1983 SI 1983/1553

The claimant has produced a document claiming to be the credit agreement but it is so illegible and not in compliance with regulation 2 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) as it is so distorted that it cannot be read. Therefore it stands to reason that the claimant needs to produce a legible copy of the agreement .

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 these documents must be disclosed before this case can progress any further and it is with this in mind that I request the court make the necessary orders to assist me to deal with this matter

 

 

Now im not sure that this can be done online, ive personally never heard of it.

i guess that you will need to check with the court and take it from there

[pt2537]

Why should it be small claims...............

 

well, quite simply, this case is a straight forward case and easily resolved upon production of the compliant credit agreement

 

the legal arguments are not complex, infact they are very straight forward and simple and could be dealt with in quick time providing the claimant supplies the requested information in the directions and that the information supplied complies with the CCA 1974 and the regulations made under the parent act as laid out in my defence

[Hopeful1]

Paul

I am going to fill the AQ I got on line

 

I need to fill a bit about why it should go for Small track

 

under proposed direction do i fill yes where it say 'have you attached list of direction'

 

What do i fill under I other information

 

 

Hi Humbleman.

 

I've just tried doing this but the form doesn't actually save when you fill it in?

 

I have rung my local court and they've said i can fax it. This is a relief as my little one is at home poorly!!

[humbleman]

It only allows you to print

[car2403]

Hi Humbleman.

 

I've just tried doing this but the form doesn't actually save when you fill it in?

 

I have rung my local court and they've said i can fax it. This is a relief as my little one is at home poorly!!

 

If you have MS Office, (or with some OS's, these days) you can print a copy of the MS Office Document Writer and then save the completed form as a TIFF or a MDI file. Handy when you need a copy too.

[pt2537]

or PDF995 which allows you to save it as a pdf file