they have ammended court amount

[BeauBrummie]

Bump

[BeauBrummie]

Hi KTF,

 

Use BUMP (bring up my post) it should have desired effect, if anyone is around to advise.

 

Beau

[rory32]

3 threads merged. Please keep to one thread per topic.

[Michael Browne]

As I understand it a counter claim must be made at the time of the defence.

 

If you do this at a later stage, you have to get permission from the court first by making an application

 

See here:

PART 20 - COUNTERCLAIMS AND OTHER ADDITIONAL CLAIMS

[KTF]

Hello again ,just an update on my situation , sorry just got back from

 

holiday,needed a break and i have couple of questions,(thankyou Els)

 

Just to refresh, i received a County Court claim from RBS,no account

 

number on POC,no LBA,i had various accounts with RBS, (current,joint,and

 

credit cards) i have defended and counterclaimed,but since i have been

 

away they have sent an N150 and its due in by 1st MAY,so claim is going

 

to be fasttrack ,due to the ruling on thursday does anything from the

 

N149/N150 Sticky need to be ammended ??, also i still have not that any

 

confirmation from their solicitors as to my cpr request ,yes they did

 

receive it.Can anyone suggest a case for Point of Directions taking into

 

account iam the Defendant/Part 20 Claimant,in light of High Court ruling

 

last week? thankyou,

[KTF]

bump , anyone

[NitrousOxide]

I would PM car2403 or pt2537

[KTF]

Ok The Aq Needs To Be In Tomorrow And Iam A Bit Worried About Getting It Wrong , Is Anyone Around Tonight ?

[pt2537]

Hi there KTF

 

What AQ is it that you have?

 

and have you filed any counter claim?

 

i will be around this evening and will see what i can do to help but my time on the forums is very limited

[KTF]

hi pt i have counterclaimed , but still nothing back from the solicitor re cpr request ,it is for a current account .Its a N150 ,but i think this is pretty new ground an i know you are an expert in consumer credit ,i know you have been unwell , i just need to get something in for tomorrow , im at work at the moment and i can't see any drafts for direction re contracual interest and non compliance of cpr on the boards , i still do not know which accounts it relates to so i have conterclaimed on the most obvious , but i still do not have anything in writing from them or on the POC, i will be heard at my local court and iam the part20 claimant/defendant , i will be back online at 7 ish if you can help

[car2403]

Popping in as you wanted, KTF...

 

I think you'd find it hard to complete the AQ as you don't have enough info about the claim. You have 2 choices, IMHO;

 

- You complete the AQ as best you can, pointing out that you don't have enough info to complete it properly and requesting a directions hearing for the Court to consider ordering the disclosure of pre-allocation documentation and POC that complies with CPR.

 

- You apply for the claim to be struck out on the basis of the above.

 

I reckon, completing it then pointing out the flaws in the claim is the best thing to do - we have some draft directions you can use, in the form of a sticky that Paul created, that you could add as well. This gives the Court the most number of options and limits your exposure to costs, IMHO.

 

Let me know what you think and I'll pull some links together to show you how to complete the AQ.

[KTF]

thankyou for the help, im off work tomorrow to get this into court on time,any stickys you could pull together would help .I had to counterclaim at the time of receiving the County Court claim to stop the process as i would have lost.Just a quick question,as i received the aq straight away does this mean they have a full case in waiting , because i had to file a full blown defence and counter claim to stop the procedure ?it just seems a tad one sided on their side ? im going to go with filling out the AQ and try and buy some more time , sorry this is so late, just managed to get broadband up and running , thankyou again

[KTF]

ok clocks ticking still , just checked the post, they have sent a copy of the AQ, asking for a stay of 1 month i need help forming a letter for proposed directions,

any help would be greatly appreciated

[KTF]

Just A Quick Update The Aq Sent Back Today , I Will Update As And When ,just A Big Thankyou To Those Who Have Helped , A Weight Has Been Lifted From My Shoulders ,for The Time Being At Least !

[car2403]

Did you get the draft directions sorted out? I've been away from home with work recently, but back now, so more available to help.

[KTF]

yes thks , i managed to sort it , it was just the time frame that i was put under , so i will update asap, im going to strike whilst the irons hot , i have 2 other current accounts to claim for its a lot easier being the claimant than the defendant !!

[KTF]

ok my case is moving on to fast track,but i have a problem with a non

 

compliance of a Cpr 18 request from their solicitor ,they deny they

 

received the request(i have proof of delivery) i have to give full disclosure

 

in a weektime but they will not give me access to the transcipts of my

 

phone calls to Credit Management which will be vital to my case

 

after my second request they say the time line is too close to the

 

disclosure date, what can i do if anything? The solicitor is adamant there i

 

nothing he can do as in tough we didnt receive the request

[KTF]

Could a mod move this thread to Legal Issues please , ?? if possible

[paulwlton]

Could a mod move this thread to Legal Issues please , ?? if possible

 

You need to elaborate. I think it would be beneficial if you gave a narrative of your dispute.

 

Paul

[KTF]

ok my claim is on my previous threads if you care to look . its been moved to fast track but the amount in their POC is a higher figure than i defaulted on, this was confirmed by my bank but nothing was put in writing , all interest had been frozen after the default , charges made up half that amount and the interest had accumulated @ 29.84% , therefore i need to get telephone records from my bank , shall i CPR them direct aswell ?

[paulwlton]

ok my claim is on my previous threads if you care to look . its been moved to fast track but the amount in their POC is a higher figure than i defaulted on, this was confirmed by my bank but nothing was put in writing , all interest had been frozen after the default , charges made up half that amount and the interest had accumulated @ 29.84% , therefore i need to get telephone records from my bank , shall i CPR them direct aswell ?

 

You'll receive telephone transcripts under a S A R. You can also make an application to the court for compliance.

[42man]

It is the solicitors duty to comply with the CPR request if they don't then in your defence you should request the judge kick them into touch....this is a usual defence if they haven't complied with the CPR...

 

I've just and pasted this from another similar defence (non compliance of CPR) you will of course need to read and edit...

 

In the Northampton County Court

Claim number xxxxxx

 

 

 

 

Between

 

 

Cabot Financial (UK) LTD - Claimant

 

 

And

 

 

xxxxxxxxxxxxxxx - Defendant

 

 

Defence

 

 

 

 

• Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.
  

• The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
  

• The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;
  

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to; the account number relating to the account, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

• Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet
  
• On 13th May 2008 I sent to the claimant by recorded delivery a request under the Consumer Credit Act 1974 section 78(1) for a true copy of the executed Credit Agreement.
  

6. In addition on 21st May 2008 I sent to the claimants legal representatives by special delivery a request for information pursuant to the civil procedure rules to furnish within 14 days to enable a suitable defence information and copies of all the documentation they sought to rely on in court to include a copy of the executed credit agreement along with all records they hold on the claimant including true copies of default notice and deed of assignment along with a genuine copy of any notice of fair use of data as required by the Data Protection Act 1998. This was received and signed for on 27th May 2008

• To this date I have received nothing from the claimant outlining any details of the alleged debt. The claimant has to date failed to comply with my request for full disclosure of documents which they intend to rely upon in this case
  

8. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

• The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced
  

• Notwithstanding points 8 and 9, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974
   
  
  
• The claimant is therefore put to strict proof that such a compliant document exists
   
  
  
• Notwithstanding the failure of the claimant to disclose the requested documentation under the Civil Procedure Rules. The request for the alleged credit agreement was made under section 78(1) running account credit, of the Consumer Credit Act 1974. The prescribed time limit for furnishing a copy of the alleged credit agreement is twelve working days from receipt of the request, as stipulated in Regulation two of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.
  
• The claimants were legally obliged to furnish a copy of the alleged credit agreement by the 23rd May 2008
  
• Furthermore, under section 78(6)(b) of the Consumer Credit Act 1974, should the claimant fail to provide the documentation in response to my s78 (1) request by the 13th June 2008 the Claimants may commit a criminal offence as the default will have continued for a period of one month as described in s78 (6) (b). Since the claimant has issued proceedings without producing the requested documentation to support their case I would contend that the Claimant’s are acting vexatious and their conduct may amount to unlawful harassment contrary to s40 Administration of Justice Act 1970
  
• The claimant states the alleged debts were purchased from Citigroup International PLC. I have not received a notice of assignment for the alleged debts from the original creditor. I therefore put the claimant to strict proof that privity of contract exists between the claimant and Defendant.
  
• It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  
• Notwithstanding point 16, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  
• Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974
  

• In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.
  

• Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant
  

Statement of Truth

 

 

I xxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

signed;

 

Date: 2nd June 2008

[KTF]

ok thankyou for the help , i will ring the court , as i said District judge has asked for full disclosure by early next week , my defence and counter-defence has been submitted therefore i have received 'A Notice To Fast Track'as its above 5k , the reason that i submitted a defence and counterclaim was still the non compliance of cpr in the first place and the timelines were very tight and i did not know which account i was defending as poc was incomplete , i have already submitted a SAR a year ago, and paid £10 all i got back were my statements. so SAR the bank again as i need the telephone calls which they admit the poc amount was completely wrong to start with.?

[42man]

If all you got was statements....then it's looking good as they must have provided, default notices, notices of assignment and a letter before action !!! don't forget to claim your costs either....

[KTF]

just statements is all i received in my SAR, i was out of the country at the time in rented accommodation in france when they defaulted me but the post was very intermittent, so i never received them and they did not provide copies of their LBA Default notice . Full disclosure is next week and trial is set for october , so they should turn up then i will check with the court tomorrow when a senior clerk is in , thankyou for the help again