Can anyone tell me the possible implications of this?

[AndyOrch]

Just doing the AoS now but im not sure if i should tick the contest jurisdiction bit, not sure what they mean because of the situation that is true i dont believe that the court does not have authority to decide the outcome of the claim issued against us as its been broght unlawfully????

 

 

Or am i over analising it?

 

Dont tick Blind

 

Regards

 

Andy:cool:

[AndyOrch]

For anyone wishing to know what this actually means

 

There are three main types of judicial jurisdiction, personal (personam), territorial (locum), and subject matter (subjectam):

• Personal - Authority over a person, regardless of his location.
  
• Territorial - Authority confined to a bounded space, including all those present therein, and events which occur there.
  
• Subject Matter - Authority over the subject of the legal questions involved in the case.
  

For jurisdiction to be complete, a court must have a concurrence of subject matter jurisdiction with either personal or territorial jurisdiction. The territorial jurisdiction is critical, on the principle that courts enforce laws which are territorial in their authority.

A succinct definition can be stated as follows: "An area of land that is governed by an entity who can hold those residing therein accountable for following specific laws."

 

 

Regards

Andy

[blind-as-a-bat]

Thanks andy, seems a lot dont know what it means as i searched on here and google, and couldnt find an answer, most think its to do with getting it to your local court, but the wording says it isnt but couldnt find what it did mean

 

So will get that done now, then its back to waiting and getting the deffence ready, wich looks like its going to be an embarrased one, unless sols/cl finance change there mind about sending info once they hear im defending it all, not had anything else since from either to my CPR or CCA, which is good:-D

 

Thanks again:)

[blind-as-a-bat]

Am i ok to enter it as the "I am a Litigation friend", does that mean they will know i am dealing with the matter for my wife?

 

Sorry if this is a daft question, just want to be sure im doing the best/right thing

[AndyOrch]

Hi

 

Yes thats ok

 

 

Andy;)

[blind-as-a-bat]

Thanks Andy, all done and dusted:)

Edited August 23, 2008 by blind-as-a-bat
cant spell, cant type either

[blind-as-a-bat]

Still swatting up:) But i just read the Rankin case and im confused on the DN bit, as Andy stated they had to allow 14 days to correct the breach but that case quotes "must be more than seven":confused: not 14 days

 

Has something changed in the legaslation since that case? It will make it harder to use an incorectly served DN in my defence if its still "more than seven" so just need to get wich it is straight in my head

[AndyOrch]

Hi Blind

 

Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561) state

 

 

Quote:

3

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

and in addition:-

 

 

 

Quote:

NOTES

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

 

Regards

 

Andy;)

[blind-as-a-bat]

Thanks Andy thats just what i needed to hear:)

 

Im away this weekend, so will hope to have something together by the begining of next week if i dont get it finished by tommorrow night, but still had no info from CL or there sols so wont be able to file a full deffence anyway so i presume im looking at filing a holding or embarresed type defence

[tendogs]

Subbing

[blind-as-a-bat]

OK this is harder than i thought it would be, but here is my first attempt, mainly bits borrowed from others i have read on here So thanks and credit to the OP,s

 

Question is have i pieced it together well enough?

 

 

In the xxxxxxxx County Court

 

Claim number

 

 

 

 

Between

 

 

 

xxxxxxxxxxx- Claimant

 

 

 

 

 

and

 

 

 

xxxxxxxxxxx- Defendant

 

 

Defence

 

The Defendant denies that she is liable to the Claimant as alleged in the Particulars of Claim, or at all.

 

A formal request under the Civil Procedure Rules section 18 was made to the claimants on the 14th of August 2008 and the claimant’s solicitors on the 13th of August 2008. Both where sent via recorded deliver, for which I have a confirmation of receipt.

 

I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. Further more the claimant’s solicitors have responded on the 15th August 2008 that they are under no obligation to supply any of the information I have requested, so have clearly stated to the defendant they intentionally wish to frustrate my defence.

As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970.

 

The defendant would also like to bring to the courts attention that on the 14th of August 2008, a request was made under section 78, running account credit, of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by recorded delivery to the Claimant, with the statutory £1.00 fee enclosed. It was received on the 15th of August 2008. The Claimant had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The claimant has not complied with this request as nothing has been received by the defendant before or after the 3rd of September 2008. The claimant, having failed to produce a credit agreement within the requisite timescale or at all, are in default of said request under section 78(6)(a) of The Consumer Credit Act 1974.

 

The defendant would also like to bring to the courts attention that no Notice of Assignment has ever been received from the claimant, the claim was issued with no warning, nor any approach to the defendant at all, which is in breach of the Pre-Action Protocols of the Civil Procedure Rules.

 

The notice of assignment was received the day after the Claim form from Howard Cohen & Co not the claimant, thereby showing that the Claimant issued these proceedings before the Defendant had been notified of the assignment and shows beyond any doubt that the Claimant made no attempt whatsoever to contact the Defendant prior to these proceedings being issued. I still to this date have had no communication in any form from the claimant, only from the claimant’s solicitor Howard Cohen & Co.

 

I have since researched notices of assignment and the provisions of the Law of Property Act 1925. I now understand that the Law of Property Act 1925 (LPA 1925) sets out specific guidelines for the issue of a notice of assignment. Specific to this case is the fact that s136 of the statute states that the notice of assignment must be written by the assignor personally. The notice of assignment I received as stated above was from Howard Cohen & Co not the claimant.

 

Secondly the assignment only operates under the Act as from the date of the notice, that is, the date on which it is received by or on behalf of the debtor (see Holt v Heatherfield Trust Ltd [1942] 2 KB 1, [1942] 1 All ER 404; Holwell Securities Ltd v Hughes [1973] 2 All ER 476, [1973] 1 WLR 757 (affd [1974] 1 All ER 161, [1974] 1 WLR 155, CA.

 

As I received the notice of assignment from the claimant’s solicitors by standard post on 13th August 2008, and not by any form of personal delivery as required by s196 of the LPA 1925, and the court claim was issued on 11 August 2008 I therefore believe that the notice of assignment I received is rendered ineffectual by the aforementioned provisions.

 

The defendant also believes the assignment to be unlawful as it was made by the original creditor, GE Money, while they themselves where in default under section 78(6)(a) of The Consumer Credit Act 1974 as the document provided did not accord in form and content with section 61, ss1 (b) and © of the Consumer Credit Act 1974.

Section 78 clearly states:-

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) He is not entitled, while the default continues, to enforce the agreement.

 

GE Money clearly breached the above by assigning the agreement to the claimant and furthermore any assignment would have been invalid as the default notice they claim to have issued giving that right was incorrectly executed as it did not allow fourteen days or more from the date of service. As defined in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) Paragraph 3: in sub-paragraph ©.

 

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant have failed to produce a copy of a credit agreement in the requisite timescale or at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons.

[blind-as-a-bat]

Quick bump sorry:oops: but This has to be filed by the begining of next week so am running out of time if the above is totaly wrong and i have to re do it

 

So would greatly aprietiate any input

[The GodMother]

im not and expert but from what i know it looks ok.

[tendogs]

Evening Blind,

 

I have a CA sent by Aktiv Kapital regarding a B&Q card also issued by GE money with the section 11 quote in the signature box. I'm going to hang on to your coat-tails here and pinch all your stuff, if that's OK?

 

Dogs

Edited September 3, 2008 by tendogs
Got Blind's name wrong

[blind-as-a-bat]

Thanks GM I think some of it was nicked from one of your deffences, if so thanks for that too:)

 

 

Do you know if i need to send any supporting documents at this stage GM?

 

tendogs, you can use anything you like , well if it works that is, not much point pinching it if it doesnt:oops:

[The GodMother]

well i dont write defences i just pass ones around that i find.

 

no supporting docs needed at mo just file it

[tendogs]

Thanks Blind

 

If I don't respond then Ill just get judgment by default, it's worth a punt, I think, and their default notices and NoAs are up the spout with me.

 

Dogs

[AndyOrch]

Hi Blind

 

I trust you are well and busy it would appear.Is the above to be submitted on line vis a vis MCOL?If so you only need to head it DEFENCE does not need all the guff above.Defence looks quite good and I recognise the bulk of it;) I feel you have concentrated to much on the NOA take alook at some of mine you can cover that in a paragraph.Also if it is to be input MCOL 8ooo characters max so you need to do a character count.otherwise very good.

 

 

Regards

 

Andy;)

[The GodMother]

even if there is a character limit you can always just post it in some ppl do

[blind-as-a-bat]

Thanks GM and Andy:)

 

There is a reason ive laboured the NOA as im hoping not to have to go all the way with this to court, and if i understood all of it correctly they will be foolish to continue, but i am aware they are foolish so will take it all the way if needs be, but i have something in reserve for that thanks to a responce to my complaint to GE;-)

 

According to word its under 7000 inc spaces at the moment with all the blurb at the top (which i was hoping would not be needed but wasnt taking it for granted) But i must admit that doesnt seem right to me but ive left enough time to post it if need be if it is wrong.

What should happen after i file it, as in time scales so i can keep an eye on it?

[AndyOrch]

Hi Blind

 

The process from here on is that the court will forward a copy of your defence to the Claimant for their perusal.They then have 28 days in which to respond if they do you will recieve an N150 AQ (allocation Questionaire) the completion of this form transfers the case to your local CC.If they fail to respond (which we hope is the case) then the claim will be stayed,until such time the claimant wishes to revive said claim.They have to pay a to do this and also the longer it is left stayed the more valid reason they will need to request this.This can also provide valuable breathing space in your predicament and also put the claimants case to question.

 

With regardst to its input this is entirely up to you but input via MCOL is secure ,free and you can even print a reciept off as proof of submission.I had a case only last week where the defendent posted secure delivery and the court then lost the defence and had to request another so food for thought.

 

I hope the above helps

 

Regards

 

Andy;)

 

 

 

I trust the above is ok for you.

Edited September 16, 2008 by Andyorch

[blind-as-a-bat]

Thanks Andy, and as always the above is more than ok

 

A bit of breathing space sounds quite nice at the moment, and as ive already pointed out regardless of the outcome we will always be holding the final ace, so they can drag it out as much as they like, and the more it costs the sweeter useing that ace will be if its needed ;-)

 

I will try it on MCOL, if it doesnt fit i will take your points on board and and with Royal mails track record so far I would prefer to use MCOL, so may re think if it wont go through, will let you know if i change anything.

 

Thanks again to everyone for there input and support so far:)

[AndyOrch]

blind

I have just re checked your defence and the claimants P.O.C you need to add this before the last paragraph of your defence

 

Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of XXX per annum. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974

 

Regards

 

Andy;)

[blind-as-a-bat]

By last paragraph do you mean here

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant have failed to produce a copy of a credit agreement in the requisite timescale or at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of XXX per annum. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons.

 

So it follows the POC order, am i understanding that correctly?

[AndyOrch]

Excellent Blind couldnt have done better myself:D

 

 

Good luck with your submission

 

Regards

 

Andy;)