Eversheds/NR - CC Claim Received / DISCONTINUED

[creditcardmug]

Excellent again as always andy, havent seen that bit about the human rights act before though.

Regards CCM

[petebeds]

Defences were delivered to the Court on Tuesday 26th so within the deadline. Now just sit and wait for the games to begin.

 

And still no sign of any response to either the CPR or CCA letters .....

[petebeds]

1st September which was the due date for them to have responded to my CCA request has been and gone, no CCA supplied.

 

Instead the attached letter dated 2nd September (outside the 12 working days). They are saying that it is not a CCA regulated loan because it is an "exempt agreement in accordance with Section 16 of the Act".

 

So what is one of them and does their continued failure to supply the Credit Agreement mean anything?

 

Also I have still had no response to the CPR18 letter.

NR Response to CCA Letter.pdf

[creditcardmug]

Thats strange, it says in their own POC that its regulated by the CCA?

[AndyOrch]

Hi

 

As CCM states the claim was issued as an agreement regulated by the CCA 1974 their own words in their P.O.C.

However this is the section where they are now stating it does not apply and is excempt

 

16.—(1) This Act does not regulate a consumer credit agreement where the creditor is

a local authority or building society, or a body specified, or of a description specified,

in an order made by the Secretary of State, being—

(a) an insurance company,

(b)

a friendly society,

© an organisation of employers or organisation of workers,

(d) a charity,

(e) a land improvement company, or

(f) a body corporate named or specifically referred to in any public general Act.

 

(2) Subsection (1) applies only where the agreement is—

(a)

a debtor-creditor-supplier agreement financing—

 

(i) the purchase of land, or

(ii)

the provision of dwellings on any land, and secured by a land mortgage

on that land; or

(b) a debtor-creditor agreement secured by any land mortgage; or

© a debtor-creditor-supplier agreement financing a transaction which is a linked

transaction in relation t~

(i) an agreement falling within paragraph (a), or

(ii)

an agreement falling within paragraph (b) financing—

(aa)

the purchase of any land, or

(bb)

the provision of dwellings on any land,

and secured by a land mortgage on the land referred to in paragraph (a) or, as the

case may be, the land referred to in sub-paragraph (ii).

[AndyOrch]

Was this a secured or unsecured loan on the property?

 

 

Regards

 

Andy

[petebeds]

Unsecured. The secured mortgage was paid off 4 years ago when we sold the house.

[AndyOrch]

I thought as much so it suits them to issue under CCA1974 but with regards to your request it is excempt. mmmmmmm? Well there as to be an agreement one way or another and whether they decide it is or isnt goverened by the CCA1974 (which they state it is) they will have to produce the agreement at some stage.To enforce said claim.

Have you recieved acknowledgement from your Court that your defence has been submitted to the claimant with view of 28days to proceed with their claim?

 

Regards

 

Andy

[petebeds]

Nothing from the Court yet, just trying to ring them find out what's going on.

[petebeds]

Defences have been received by the Court but no acknowlegement yet. The lady on the phone first of all said they hadn't got them, then disappeared for about 5 minutes and came back and said that yes, they had got them but nothing had been done about sending them on to the Claimant yet.

[AndyOrch]

Oh well you have submitted so nothing more you can do.You would normally recieve an acknowledgement from court to say your defence had been passed on to the Claimant they would then have 28 days to respond.Failure to respond would put the claim on stay.If they responded within the time frame then AQ s would be issued.Im afraid you are in limbo at the moment but would advise you to keeep checking with Court to keep your eye on the status of the claim.

 

I trust the above is of help

 

Regards

 

Andy;)

[petebeds]

Yes, many thanks Andy

[petebeds]

OK, we're now 4 months down the line and it appears that absolutely nothing is happening. I last spoke to the Court about 3 weeks ago and they were saying that although they had a record that the Defences had been received in time, they could not find them anywhere ...

 

In view of the time that has passed, the failure to supply under CPR18 and the refusal to respond to the CCA request, is it possible to apply to the court to have the thing struck out and declared unenforceable?

[petebeds]

Finally got through to the Court to be told that it is in the backlog of cases and the Defence/AQ will be sent to Northern Rock's Solicitors within the next week or so. Whether the lady I spoke to was looking at my case file or not I don't know ... it would seem that Northern Rock have been keeping them rather busy!

[petebeds]

N150 Allocation Questionnaire and N152 Notice that a Defence Has Been Filed arrived in the post today, dated 22nd January and needing to be returned by 9th Feb. What do I need to do with these now? Thanks.

[creditcardmug]

Hi Pete,

 

Dont get it wrong this time, take your time to get it right, have a read of this for starters, ill get back. Has this been transferred to your local court?

 

Can you confirm

 

1 you have not had a reply to your CCA request

2 you have not had a reply to your CPR request

 

Also who is the CLAIMANT on the court form?

Who is the original creditor?

 

Sorry, no time to go back thro the thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

Edited January 24, 2009 by creditcardmug

[petebeds]

Hi CCM

 

N1 issued at the end of July 2007. AOS filed straight away by both me and the ex; Defences filed on 26 Aug 07. Nothing then until now.

 

CCA request - Northern Rock replied stating that it is "an exempt agreement in accordance with S16 of the Act" but the claim was issued stating that it is a Regulated Agreement. No other response to CCA request received to date. Other letters received subsequently (computer generated, threatening legal action if payment not made and coming out twice a month) state that it is a Regulated Agreement.

 

CPR18 request was replied by Eversheds (solicitors) stating that they had passed the letter to Northern Rock and that they had been instructed to place proceedings "on hold" (yeah right!). No response received within the 14 days allowed or subsequently.

 

Claimant on the N1 is Northern Rock, the alleged original creditor.

 

It has not been transferred to our local Court, the N150 was issued from Guildford.

 

Thanks.

[creditcardmug]

Im going to start posting up some stuff to go into your AQ, first the draft order for directions and the "other information", these can be tweaked, let me know what you think so far.

 

 

In the xxxxxxxxxxxx County Court

Claim number xxxxxxxxxx

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) Shall file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxx under reference xxxxxxxxxxx together with any terms and conditions that applied to it

(b) the default notice

the original documents must be produced at the hearing

© a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the multi track and

 

4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

 

Edited February 2, 2009 by creditcardmug

[creditcardmug]

xxxxxxxxxxxx -v- xxxxxxxxxxxxxxxx

Claim No: xxxxxxxxxxxxx

 

Other Information

 

Section I

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 multi 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

[petebeds]

Hi, yes thats looking good so far. As there are 2 of us being claimed against do we need to send back 2 identical AQs?

[creditcardmug]

Yes, (i presume you both have a copy of the N150 from the court).

 

As this is multi track, have you researched the cost implications of this?

 

You will probably want to adjust the fonts in the drafts, i didnt have time, print it and see how it looks, and adjust to suit.

 

Do you need any help with the other questions?

[petebeds]

Hi CCM, yes please will need help with the rest of the questions.

 

Am not concerned about the cost implications, as things stand if we lose this its probably going to end up with BR anyway, but we're not going down without a fight.

[creditcardmug]

Ok, ill sort something out for the rest of the questions, standby.

 

I see you have to file it by 9th feb, bump this thread at the weekend when i have some more time

 

CCM

Edited January 28, 2009 by creditcardmug

[petebeds]

Bumping as requested.

[creditcardmug]

Hi again,

 

Section A tick no to all

4 reasons The claimant has failed to substantiate this claim

Section B tick yes in the box write " i request this case be transferred to my local court, as i am unable to travel"

section C tick no. in the box write "please see attached section C"

Section D Write the amount they are claiming, not including costs

applications tick no

witnesses write your name, and in brackets "myself"...in the other box write "all facts"

Experts tick no to the first question, leave the rest blank

Track tick multi track....leave the box blank

Section E 3 hours....fill in the rest if there are any dates you cant attend

Section F tick yes to 1st question...no to 2nd

Section G leave blank

Section H leave blank

Section I tick yes to the 1st question...no to the second

tick no to applications

in the big box write "please see attached section I"

 

Sign & date it etc.

 

Attach your 3 copies, and send by SD on 5th Feb, don't send the other side a copy