Sharpman v Nationwide credit card services ***WON WITH WASTED COSTS***

[SharpmanTF1]

and, what I now understand as being a 'tomlin order'

 

could I push it and request they add 'remove all entries with cra's and cease all activity relating to the account?

 

or should I be greatful that they have stopped the case.?

[steven4064]

Is this your case?

 

if so, I think it's a damn cheek that they have sent you a Tomlin order. GE did that to me so I recycled it and I did an order when I was good and ready. Also, if so, then you are quite at liberty to keep on until you have got everything you wanted.

[SharpmanTF1]

They are claiming against me.

as they don't have enforceable docs I think they have backed out.

but, if legislation should change or 'Applications that don't contain the terms' suddenly become enforceable are they leaving it open so they can pursue?

[steven4064]

I don't think that is likely and, in any case, legislation is not retroactive. You could still say you are not going to sign it unless they remove the defaults. It's up to you.

[SharpmanTF1]

Ok, so, from reading the accompanying letter they say that if I sign and return they have been instructed to close the file on 'this' case.

 

can they, further down the line, decide they might want to try their luck and go the whole hog and start another claim for the same account.

 

And, also, because the debt exists will they, and can they continue to enter details with the cra's.

 

how can I get them to close the account and zero it off.?

 

just a few questions going thru my mind. it's a great weight lifted because they're not pursuing any more. but, i'm sure a dca will rear it's ugly head if I don't get the balance written off.

[MARTIN3030]

reported for further advice-will leave for Steven as he helpin here.

[steven4064]

If they agree to a full and final settlement now, they cannot come back later for the rest - it's called promisory estoppel - see this wikipedia article.

 

I think you should ask for clarification. Ask them if, by 'closing the file' ,they mean

 

1. that they are accepting this order as a full and final settlement - ie that the debt is deemed as settled?

 

2. that they will remove corresponding markers from your credit file.

Edited November 1, 2008 by steven4064

[SharpmanTF1]

Thanks steven, I'll give that a whirl. I'll have to email as we only have until 6th nov to reply to court.

[SharpmanTF1]

Ok, they weren't buying it.

 

Got a response from their sols today

 

Dear Sir

 

Thank you for your recent email, the contents of which are noted.

 

Please be advised that neither of the terms you propose can be added to the Consent Order for the following reasons:

 

1. Our client is unable to alter any default record lodged with any credit agency until the sum due under the default notice issued to you is repaid in full. The D/N is not a valid D/N on a number of counts

 

2. Notwithstanding the issues you raise in relation to clarification of various statutory provisions, So they don't have a leg to stand on the fact remains that you applied for the credit product under which the claim has been issued. Through making numerous transactions with this credit product, you have increased the credit card balance to over £9,000 and are liable to repay this sum under the terms of the credit agreement.

 

You have presented no good reason to suggest that the balance should be written off, in part or in full and therefore our client will certainly not consent to doing so.

 

That being said, we are seeking our client's specific instructions in relation to this matter and will revert to you in due course.

 

Yours faithfully

 

Any body suggest a quick response to this. I have until 6th nov to get them to change their minds.

 

Sharpman

[steven4064]

I don't know what anyone else thinks but I would be inclined to submit an AQ with draft order for directions for -

 

1. Stike out of their statement of case under CPR 3.4 (2)(a) on the grounds that it is unlikely to succeed in the absence of a signed agreement (quote CPT PD 16, 7.3 and s127 CCA 1974 and bits of case law from pt2537 defence)

 

2. In the alternative, that they should supply a copy of a signed agreement within 14 days or their case be struck out.

[Viscount Stair]

subscribing - good luck, sharpman

[SharpmanTF1]

quote CPT PD 16, 7.3

 

Steven,

don't understand that part you're refering to. Is that the bit where the claimant has to serve the docs mentioned in a claim with the poc when it is being served.? If so,this is not the case as it was raised at bulk claims.

 

Would I just fill out the AQ exactly as previous submission, using the same information as nothing has changed.

 

Could I use the same Draft Order for directions and same other Information (Section H)

 

N150 Allocation Questionnaire

 

Section H - 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 and 63, section 127(4) precludes the court from making an enforcement order.

 

It 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

 

In The XXXXX County Court

Claim Number XXXXXXX

 

Between

NBS – Claimant

And

MR Sharpman - Defendant

 

N150 Allocation Questionnaire

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,

Copies of any statement or other documents 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.

 

Don't want to rub the DJ up the wrong way by just repeating myself.

 

sharpman

[steven4064]

CPR Prcatice Direction 16, para 7.3 has two bits - the first that the agreement should be attached to the POC doesn't apply to MCOL (although I don't think the CPR intends that they shouldn't send it at all) and a second part that the original should be produced in court.

 

I would be tempted to have a first bit in part H. Something along the lines of

Despite numerous requests by the defendant, the claimant has not provided a copy of an executable agreement as defined by s61 of the CCA 1974. The most that has been produced is a copy of an application form and some unrelated Terms and Conditions. Section 65 of the Act says that an agreement that is not properly executed can only be enforced by an order of the court. However, the court's powers in this respect are limited by s127 (3) of the Act. Only a document signed by the debtor and containing within itself the terms prescribed in the regulations may be enforced. The claimant has failed to produce a copy of such an agreement.

 

Further, paragraph 7.3 of CPR PD 16 says that the original of the agreement must be produced in court. Given that the claimant is a major financial institition required by statute to keep records from 5 years up to anything up to 40 years and by business prudence to keep documents relating to ongoing contracts whilst the contracts are in force, the balance of probabilities must be that the fact that they cannot produce a copy of the executed agreement for the alleged debt indicates that no such agreement exists.

 

If no such agreement exists, then the claimant's statement of case discloses no reasonable grounds for bringing the claim. Further, since they are well aware of the requirements of the CCA 1974 and the CPR, this action amounts to abuse of process. The defendant therefore respectfully requests that the court strike out the claimant's statement of case pursuant to CPR 3.4 (2) (a) and (b).

 

In the alternative that the court is not minded to strike out the claimant's statement of case, the defendant respectfully requests that special directions may be given....

[SharpmanTF1]

Thanks Steven,

 

the Part H looks good. would I just issue the same draft order as there isn't much else I can add in the circumstances as no further documentation has surfaced since I sent the last one in.

 

They also broke the CCA request as there were no terms and conditions supplied, even after the cpr request.

[caro]

I don't know what anyone else thinks but I would be inclined to submit an AQ with draft order for directions for -

 

1. Stike out of their statement of case under CPR 3.4 (2)(a) on the grounds that it is unlikely to succeed in the absence of a signed agreement (quote CPT PD 16, 7.3 and s127 CCA 1974 and bits of case law from pt2537 defence)

 

2. In the alternative, that they should supply a copy of a signed agreement within 14 days or their case be struck out.

 

Thanks Steven,

 

the Part H looks good. would I just issue the same draft order as there isn't much else I can add in the circumstances as no further documentation has surfaced since I sent the last one in.

 

They also broke the CCA request as there were no terms and conditions supplied, even after the cpr request.

 

Stephen had already answered your question suggesting a draft order above. I would be inclined to also ask for any adverse markers to be removed from your credit file on the draft order.

[SharpmanTF1]

Ok, thanks guys for the assist.

2nd AQ gone in today. copy to Claimants sols by Email. hard copy to follow.

 

Fingers crossed.

[steven4064]

What did you put in as draft directions in the end?

[SharpmanTF1]

Steve,

This is what I went with in the end.

 

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,

Copies of any statement or other documents relied upon

If the Claimant fails to comply with this order, the claim will be struck out

without further order.

The Claimant removes any adverse markers held on any of the Credit reference

Agencies that the claimant has exchange information with.

Any and all further processing of personal information desists, be it electronic or

otherwise.

The alleged Account is reduced to zero and a statement of account showing this

has been done produced and forwarded to the defendant.

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

 

Section H 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 and 63, section 127(4) precludes the

court from making an enforcement order.

It 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

 

Extract of Wilson V ftc

 

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 and 63, section 127(4) precludes the

court from making an enforcement order.

 

Sharpman

[SharpmanTF1]

Update -------

 

Got a letter in post from drydens.

 

It's gone from this ---

 

1. all further proceedings in this claim be stayed except for the purpose of carrying such terms in effect (what are the saying here)

 

2. the parties have liberty to apply to carry such terms into effect (huh, what are they saying here)

 

3. there be no order as to costs ( again, what are they saying here.)

 

which they wanted me to sign...

 

to this, after me putting in my AQ to court on 5th.

got this dated 6th.

 

Dear Sir

WITHOUT PREJUDICE SAVE AS TO COSTS Nationwide Building Society -v- Yourself

 

We refer to the above matter.

 

Whilst making no admission of liability in respect of the issues raised in your defence and purely on a commercial basis, our client no longer wishes to proceed with its claim against you.

 

We now enclose, by way of service, a Notice of Discontinuance and confirm that we will shortly arrange for our file to be closed.

 

We would ask you to note however that you remain liable to repay the balance of the Credit Card in accordance with the terms and conditions incorporated in to the Credit Agreement and, as such, our client will continue to pursue this debt from you by other means.

 

Enclosed was a form N79 - Notice of discontinuance (5.99)

 

Where does that leave me now. they quote other means - what other means are left open to them?

 

sharpman

[pt2537]

Right they have discontinued the claim,

 

So they fall liable for your costs now, see CPR part 38

 

secondly you do not have to accept discontinuance, you can apply under CPR part 38.3 to have it set aside and go to trial

 

they have no other means available to them to recover the monies to be honest and i think that the discontinuance needs a reply thats for sure

[Viscount Stair]

Is an esteemed firm of solicitors (regulated by the SRA) threatening the use by its clients of improper tactics to recover an unenforceable debt?

 

Tut-tut! I think that is a breach of the Solicitors' Code of Conduct - in particular, it goes against rule 10.01 and paragraph 5 of the guidance on that rule.

[SharpmanTF1]

Thanks PT for the info......

 

ok peeps,

 

can anybody point me in the direction of a thread that has dealt with applying to have a discontinuance set aside for going to trial. I want to get these ppl off my back one way or another. I'm not realy interested in costs as such because I haven't realy incurred any apart from my time investigating and correspondence.

 

But, I know the standard fee is 9.50 per hour for a LIP.

 

If I was to go down this route, how could I proove the time that I spent on various activities. There's no traveling costs incured as the court is local to me and each time i visited it was during the course of my job.(in the area at the time)

 

Also, anybody got a good letter that I could reply to these smarmy Solicitors?

 

Sharpman

[creditcardmug]

I don't think you need to prove your costs, they are minuscule compared to the sums claimed by legal professionals, judges seem to approve them as long as they are not excessive, thats my understanding.

[pt2537]

you could easily get them to pay out £300 without them even challenging it in my opinion.

 

At the end of the day the fact they have discontinued says a lot about their case

 

its your call personally id write to them advising them that your defence is fully valid and if they wish to proceed with collection activities then you will have no option but to apply to have the discontinuance set aside

 

however, if they agree to discharge you from the debt and remove all data from your credit file you will accept their discontinuance

[SharpmanTF1]

ok peeps, ahd the following from the courts today.

 

GENERAL FORM of JUDGEMENT or ORDER

 

before DJ xxxx sitting at xxxxxxxx court

 

Upon neither party attending

 

IT IS ORDERED THAT

 

The Claimant must by xxx/xxx/xxx Comply with the order made on xx-xx-xx

 

Date xx/xx/xx

 

Could some one explain what is being asked here. I know it's asking the claimant to do something, but they've already sent a notice of discontinuance to me. The reply to the previous Standard order for stay had to be with the courts by 06th November. This one is telling them that they have to comply with the 'order' by 25th Nov. (14 days from the Order).

Have they sent this out because the claimant hasn't replied with either an AQ or other answer?

 

sharpman