Backdoor Lowell CCJ/CO - old Barclaycard debt - prob SB'd - Set Aside - Now Stayed

[JonCris]

So what your saying, & forgive me if you have already said this, but that any such debt is time barred!

[bobneedhelp]

JonCris

I am unsure myself since I was ill and was moving about getting support from family and only until very recently that I begin to learn to deal with issues that was in August. And I am glad I did.

 

Although I still get very tire easily I am coping better and looking to getting my life back.

 

There were 4 dca's writing and so far one have replied stating that the allege is statute barred

- so I am assuming that the others are. I will have to wait and see what happens when I attend hearing for my other case in mid December. I will need help in preparation now for that.

 

x20,

I have sent letter as suggested and also taken a copy of the letter together with the letters/particulars of claim to the court for the attention of the court manager/DJ.

 

x20

The date is up and lowell has not replied nor has the court. so what do i do now ?

Write to the court and ask for the case to be strike out.

 

I need to reply to do a defence by tomorrow???? HELP!!

 

I received a letter from Lowell writes:

 

Quote

We refer to the above above claim and to your letter dated xxxx and received by us on xxxx of which the contents have been noted. However, we would like to refer you to the court dated ......

 

The claimant accepts that the amended statement of case were filed and served for days late, however the court dated xxxx did not state that the claim would be struck out if this event occurred.

 

In view of the above and with reference to paragraph 4 of the court order dated xxxx the Claimant notes that you have not filed or served a defence to the amendment statement of case. Taking into consideration the above the Claimant is agreeable that the time extended to you to file and serve a defence, without any prejudice against you, until 4 pm on 9 Dec 2008

 

signed

 

my head is spinning .

..I am feeling tired, disorientated, worried and anxious .

.. i will close my eyes and rest a little ..

.please drop a line to help or advise if you do read my posting

...many thanks ..

[surfaceagentx20]

Bob,

Throw this at them and make damn sure a copy hits the court file too.

 

Dear Sir,

 

Re: (Claimant) v (Defendant) (Case No)

 

Thank you for your letter dated (date).

 

As far as I recall I have not suggested that your claim was struck out as a consequence of your failure to file and serve Amended Particulars of Claim by (date). Likewise and on the other hand, neither have you suggested you have been granted an extension of time for the service of the Amended Particulars of Claim. As you are well aware from my previous letter, my contention is merely that you failed to fully and properly meet the permissive terms of the order granted previously in regard to which and so as to proceed, I suggested that you should apply to the court to extend the time permitted to you for the service of Amended Particulars of Claim.

 

Prior to your claiming the ablity to grant to me an extension of time for the service of a Defence and an ability to apply for judgment in default of a defence to a claim served beyond the boundary permitted by the court, I suggest that you first obtain the court's permission to serve your Amended Particulars of Claim late. You might also care to explain to me and to the court why you failed to comply with the previous court order, failed to comply with CPR 16 and failed to apply for an extension of time for compliance before the period for compliance had expired.

 

In the meantime and pending receipt of your application notice for further time, I confirm a copy of this letter has been delivered to the court.

 

y/f

 

x20

[andrew1]

Just a matter of interest x20, what are the consequences of filing disclosure documents later than the date Ordered - I'm thinking in terms of a few days rather than longer periods?

[bobneedhelp]

x20, andrew1

Many many thanks for helping again at the 24th hour I will write letter immediately and post first thing this morning. I will then take a copy to the court.

 

As I have until the 2 Dec to put in my defense, according to the DJ decision on the Oct 27 hearing outcome, will I still need to file a defense? If so what? If not why not?

 

x20, andrew 1

 

Thanks very much X20. I have now written the letter, as per template suggested by your good self.

 

I am not sure where this is leading to and what is the next thing I need to do. It worries me much when I received such a letters from lowell at the very last minute.

 

Can I do anything in advance, like write to court to get case struck out? or Do I just wait until lowell write to me again to see if they have written to the court re: above letter, is there an end not too far ahead or is this another long drawn battle?

 

Also, I have not file a Defence (by 2 Dec as stated by DJ). What is this Defence that I have to write? Can I clarify that the previous letter and now, this letter that you have suggested I write in reply to lowell is already a form of defense? (copy given to the court)

 

x20, please can you explain to me so I can understand a bit more. Sorry to ask all these questions - they just keep popping into my head along with the worries and all. If I am worrying unnecessarily do let me know.

 

p/s - my neck is very stiff and I have just found out that this happens when Statin is taken.

I have been on this drug for a long time now so I guess I have to learn to live with it.

In addition the worries does not help.

 

But I must say these few months, I am feeling much better and stronger even though these cases with the DCA's will be for a long time. THANKS to you X20,and all at CAG

[surfaceagentx20]

There are usually no consequences where one party delivers a list of documents to the other a little later than directed by the court. There would only be a risk of some consequence, most likley costs, if the other party had issued an application for directions of some sort owing to a failure to comply with the order on time.

 

The point about Bob's situation is this: The order in relation to the Amended Particulars of Claim was permissory rather than mandatory. The order was prefaced 'If'. That is 'If' the Claimant did not wish to carry on, the Claimant was under no obligation to take any further step in the case. On the other hand, 'If' the Claimant wished to carry on with the claim, permission to do so was conditional upon the Claimant serving Amended Particulars of Claim by a date specified in the order.

 

In this case the time limit for taking up the opportunity to amend came and went. The Claimant did not serve the Amended Particulars of Claim until after the time permitted. Instead of taking 14 days to comply, the Claimant took 18 days.

 

Bob pointed the lateness out to the Claimant following service and suggested the Claimant should apply for more time. The reply from the Claimant purports to reserve to the Claimant the following powers:

 

[1] to extend the time for the service of the Defence

[2] to obtain judgment in default of Defence if a Defence is not delivered within the time extension dictated by them

 

Frankly, when I read the nerve of these pompous people I saw red. To assume they have acquired a facility to serve Amended Particulars late and an ability to impose terms upon Bob by when he shall serve his Defence is unbelievable. The time by when Bob was to serve his Defence was not some arbitrary date but was imposed by order of the court in the event the Claimant elected to take advantage of the permission to amend.

 

The Claimants are seeking to dilute the consequences of their failure to comply with the condition for permission to amend by extending the time by when Bob shall serve his Defence. Worse, they are saying if you do not deliver a Defence by when we tell you to, we shall apply for default judgment. The claimant's offer no explanain for the delay. They don't even offer like for like, by which I mean, having taken 18 days to comile their Amended Particulars of Claim, they don't affrod Bob a like period of time, but rather the simple period of 14 days which was ext4ended to Bob on the assumption the Amended Particulars of claim would have been delivered on time.

 

When I knocked up that letter for Bob it was early this morning and I had in the back of my mind an order which on checking this morning, is not adopted by the CPR, though it's intention kinda lingers in CPR PD 17 para 1.3 and kinda shows my age:

 

RSC O.20, r9 said:

Where the Court makes an order under this Order giving any party leave to amend a writ, pleading or other document, then, if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, of a period of 14 days after the order was made, the order shall cease to have effect, without prejudice, however, to the power of the Court to extend that period.

 

CPR PD 17 para 1.3 says:

Where permission to amend has been given, the applicant should within 14 days of the date of the order, or within such other period as the court may direct, file with the court the amended statement of case.

 

So what to do?

 

What I was trying to do is to put the Claimant to trouble and expense to bring themselves into line and overcome their own default. There is injustice where one party defaults under an order and without seeking or gaining relief for that default so conducts itself as to cause the other party to suffer default judgment. The problem here is that I foresee the Claimant doing nothing other than applying for default judgment. Plus, there is a risk the court office might grant default judgment in which event, the onus will be back on to Bob to apply to set that default judgment aside again.

 

To remedy the potential for injustice, Bob may

 

[1] apply to the cour for an order striking out the amendment on the ground that the Amended Particulars were served late and the Claimant has not applied to the court for an extension of time or for any other relief (Fee on application : £75.00), or

 

[2]file a Defence

 

Bob may take the view that protecting his position by filing a Defence now may be his preferred course. If so, here is a form of Defence.

 

DRAFT / DEFENCE

 

1 No admissions are made as to paragraph 1 of the Amended Particulars of Claim.

 

2 Paragraph 2 of the Amended Particulars of Claim is denied.

 

3 The Defendant makes no admissions upon the allegation that on (date) he obtained a credit card account from (name of Bank). Alternatively, if the Defendant obtained a credit card account from (name of Bank) pursuant to an agreement, the Defendant admits the same was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which (name of Bank) may have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

4 Save that any agreement made betwen the Defendant and (name of Bank) had long since terminated by October 2006 or by when the Claimant purport to have acquired an interest therein, paragraph 4 of the Amended Particulars of Claim is denied. It is denied the agreement was terminated by (name of Bank) in accordance with The Act and the Claimant is put to strict proof that the termination entitled (name of Bank) and/or the Claimant to any of the relief now sought by the Claimant in these proceedings.

 

5 Further and without prejudice to the matters set out in hereinbefore, the Defendant avers that incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions by (name of Bank) and/or the Claimant. It is denied (if it be alleged) that (name of Bank) and/or the Claimant incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by (name of Bank) and/or the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

6 Further and in any event, the Claimant's claim is barred in whole or in part by reason of the provisions of Limitation Act 1980 section 5 and/or section 6.

 

7 In the circumstances the Claimant’s claim to be entitled to £xxxx.xx or any other sum is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

Dated:

 

Any queries, please let me know.

 

x20

[bobneedhelp]

x20

I have taken the letter to the court and also sent the letter to lowell by first class recorded delivery.

 

Thanks for the last post and suggestions / options.

Despite reading a few times,

I do not half understand what you have written (technically I mean!).

 

I gathered that I have 2 options to: apply to get it struck out or put in a Defence.

 

Which one should I be doing in this instance.

I have no idea which will be the best.

Advise please or can i do both?

 

Sorry I must apologized as my head is not functioning right and decision on this is out of my depth on these options.

I need help and guidance on this please.

 

I will be happy to do both if this is alright.

 

x20,

And do I do this immediately and sent it over to the court tomorrow?

and do I sent a copy to the Claimant too?

 

x20

I am feeling very tired and will close my eyes and sleep a bit and wake up later on to follow on with this

- thanks very much for your help and support.

I will not be able to reach this stage or be here had it not for your help.

 

And of course many thanks too to all the other CAG members too for supporting me through my plight.

 

x20,

I had some sleep and feeling a little better now

- I have filled in missing details in above Defence Letter and PM you for cross checking.

If it is alright, then I will get it printed and take it to the court later today.

 

And do i send a copy to the Claimant too?

 

x20

what is the ACT?

Quote

The Consumer Credit Act 1974 (The Act)

 

x20,

if reading this too

- is it possible to visit my other thread

- registered county court judgement

- this hearing is next tuesday 16 Dec and can i use the same one as before?

 

sorry to ask again ..

.and again .

..learning to cope and fight this through is good for me but I am in a minefield .

... lost and walking in dangerous ground as I know nothing

.. I cannot even think as straight with all these dca's .

...but I am still working at it ..

.until the end ..

.sigh!

 

Panicking ..

..take deep breadth .

...and calm down .....

 

x 20 and all,

i need to go out and not stay on to the computer .

..it is not helping me to calm down .

.I will go out for a walk to the town and to the park

..thanks x 20 and all .

...for helping

...I will be back later on and hopefully I can decide on the Defence Letter and take it to the court tomorrow morning.

 

Hello All,

The walk was very good to be able to get away helps

.... will await some confirmation about the option .

.. if not then I will write the Defence and take it to the court tomorrow morning BUT I am not sure whether I need to send a copy to Lowell Solicitors??

So if you are around x20,

please can you advise me on this

- thanks.

 

x20

what will this leads to after i send in my Defence?

 

x20 and all

Thanks for help

- I will do the Defence as suggested and take it to the court tomorrow.

I am not even sure what this will achieve nor do I know what my next step or action I need to take.

I am feeling very tire but have not given up yet.

 

I will see this through despite the challenges ahead.

BNH

[andrew1]

x20 and all

Thanks for help - I will do the Defence as suggested and take it to the court tomorrow. I am not even sure what this will achieve nor do I know what my next step or action I need to take.

I am feeling very tire but have not given up yet. I will see this through despite the challenges ahead.

BNH

 

..and get yourself an early night too young man, you need the sleep to be strong.

[bobneedhelp]

 

andrew1

many thanks for the encouragement and continuous support .

..and of course many many thanks too to X20 for all his help right from the start.

Yes I need the sleep to be strong.

BNH

 

one question:

do i need to send a copy of the Defence to the DCA solicitor?

 

 I am taking Defence letter to Court and I like to know if i need to send a copy of this Defence letter to the DCA Solicitor as well??

[ukaviator]

Yes Bob, keep a copy for yourself, one to the DCA solicitor and one to the court.

 

Always send the other party everything you have, they have no excuses to worm their way out.

 

Also send it recorded delivery, make them sign for it, also you can track it to make sure they have received it.

[bobneedhelp]

ukaviator,

ok thank you very much

 

x20, ukaviator and all,

I have taken Defence letter to the court this morning and then send off a copy to Lowell (recorded delivery).

 

So, now what will happen next? Will DJ make a decision or do I need to be doing anything in addition to what you (x20) have suggested as my options.

 

Please help on this. Thanks.

[ukaviator]

Just then wait now Bob to see where it all goes next.

[bobneedhelp]

ukaviator

ok! will wait ...this is at times testing patience and i guess it will be a long battle to come. I am learning to be persistence again although it is hard at times. These few months has clearly made me feeling stronger and more happier if I recollect back and compare the last 8 years or so ....Thanks.

 

X20, ukaviator,

Please can I ask how long this waiting will be ...is there an estimated timescale whereby I can take some action and ask the court to have the case strike out perhaps ....unsure and mind are continuously thinking about all these ...unhelpful! yes but this is what I am thinking but I am still being positive....

 

x20, ukaviator and all,

Does anyone know or have experience how long is this waiting - the thing is, I am worried like the last time all these surprise letters coming through the letter box and then I panic over it - perhaps I need some reassurance as you can see i am not all that clever on this.

[andrew1]

Bob, you should be well aware now that with the backing of the people on here there is no reason for you EVER to go back to panicking - picnicing is what you gotta start doing and enjoying yourself. This is not the time to be worrying , relax and enjoy a few days off safe in the knowledge you got us all to fall back on. Things will pan out as and when, once they hit the door mat just come and talk to your friends - okay?

[bobneedhelp]

andrew1,

A million thanks for the support and reassurance - yes I know that i have got the help and support and without which I will still be in the black hole. Having seen some light I hope to continue to gain strength everyday and hopefully be myself again once of this fine day.

 

Although it has been about 4 months since I started asking for help it will take me a long while before I can fully be myself and I know that. the days has been somewhat up and down but I am chirping up and reminding myself of myself when things are hard.

 

So, Thanks.

 

X20, andrew1 and all,

Today I received TWO letters from the court. If you are around, PLEASE can you HELP on this. Both letter is from the court and I do not know what to do next ....

 

Letter 1 (general Form of Judgment or Order)

Quote

Before District Judge xxxx sitting at xxxx County Court, Address xxxx

 

Upon the claimant having failed to comply with paragraph 3 of the Order dated 27/10.

 

It IS ORDERED THAT

 

The Claimant's do so by 4.00pm on 29/12/08 serve an application in proper form for extension of the time for the compliance with paragraph 3 of the order dated 27/10 and in default the claim shall be struck out.

 

Letter 2 (Notice that a Defence Has been Filed)

Quote

The defendant has filed a defence. An allocation questionnaire is also enclosed which contains notes for guidance on or before 05/01/09 and return to the court office at Court ...xxxx

 

A fee of 35 pounds is payable by the claimant on the filing of their allocation questionnaire.

 

For letter 2, the allocation questionnaire form is enclosed: it reads;

Quote

Allocation Questionnaire (N149)

(Small claims track)

 

Last date for filing with court - 05/01/09

 

Please read notes on pages 4 before completing the questionnaire.

 

You must complete ALL sections of this questionnaire. It will be used to assist the court in the management of the claim.

 

You should note the date by which it must be returned and the name of the court it should be returned to since this may be different from the court where proceedings were issued. This information is shown on the Form N152 which came with this questionnaire.

 

If you have settled this claim ( or if you settle it on a future date) and therefore do not need a hearing, you must let the court know immediately.

 

A. Settlement

Would you like to use the free small claims mediation service provided by Her majesty's Court Service, to help you settle your claim with the other party. YES or NO

 

B. Location of Hearing

The claim will be heard in the court to which this form must be returned. Is there any reason why it should be transferred to another court to be heard.

 

YES or NO

 

If YES which court and why: ......

 

C. Track

Do you agree that the small claims track is the most suitable track for this claim?

YES or No

 

If NO, please say why ......

 

D. Witness

So far as you know at this stage, how many witness (other than yourself) do you intend to call to give evidence at the hearing?

 

E. Experts

Do you want permission to use an expert's report at the hearing? see notes YES or NO

 

If YES, what will the expert's evidence deal with?

 

Have you already obtained an expert's report? YES or NO

 

In addition to using an expert's report do you want your expert to attend the hearing and give evidence? YES or NO

 

If YES, give reasons why you think their attendance is necessary: ......

 

The court may order the appointment of a single expert who can be instructed by both parties. If you think this would be appropriate, please day why. ...............................

 

F. Hearing

Are there any days within the next four months when you, an expert or a witness will not be able to attend court at the hearing? YES or NO

 

If YES, please give details

Dates not available

Yourself

Expert

Other essential witness

 

Will you be using an interpreter at the hearing either for yourself or for a witness? (see notes)

 

If YES, please specify the type of interpreter ................

 

G. Other Information

In the space below, set out any other information you consider will help the judge to manage or clarify the claim, including any other information you consider should be supplied by the other party.

 

.......................................

.....................................

 

H. Fee

Have you attached the fee for filing this allocation questionnaire? YES or NO

 

An allocation fee is payable if your claim or counterclaim exceeds1,500 pounds.

 

Additional fees will be payable at further stages of the court process.

 

I. Signature

 

Signed: ....... Date : ......

 

Print full name: .......

 

if a solicitor is acting for you please enter the firm's name, reference number and full postal address including (if appropriate) details of fax number, e-mail address, Document Exchange (DX) number. Otherwise, please enter your details as appropriate. This will assist the court in contacting you, if necessary at short notice.

 

ref no.

tel no.

mobile no.

fax. no.

email address.

DX no.

 

Last page is the NOTES ( do you want me to type this out for reference/information????

[42man]

Bob, i'm not up on AQ'a but these threads might give you some help - the first one may not be of much help as it is related to bank charges

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161188-allocation-questionnaire-urgent-help.html

 

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

[bobneedhelp]

42man

reading thread - it is useful but I do not really understand much of it but will continue to read and try to understand.

is this AQ from the court or from DCA? I am the defendant not the claimant? so i need to fill in this AQ as well.

 

42man,

Reading through thread you sent on AQ. Somewhere there is this letter re: requesting for information ...what is this and do i need to send it ..to DCA ..confused!

 

I shall take a rest and have a good sleep ....feeling tire a lot these days ...so I will be back on later ..thanks for helping ...

 

42man, X20 and all,

Read through some of the thread given ..saw something on N149 and suggestions to complete form? Do I do the same, just copy the answers or is my case not the same. help!

 

reply needed for the court by 5 jan.

 

X20, 42man, andrew1, ukaviator, postggj, Olives and all,

It's nearing Christmas and I guess everyone is enjoying the festive activities. I guess i will wait until immediately after the new year and then come back and ask for help again.

Wishing all a Happy Christmas and a Great New New Year for 2009.

BNH

[ukaviator]

Bob

 

The AQ is from the court. When the defence is returned to the court, the court will send an allocation questionnaire to both the claimant and defendant. This must be returned no later than the date specified on it. When you return the allocation questionnaire, you have to pay a fee although this may be waived on financial grounds. The court will use the information given on the allocation questionnaire to decide which track the case will be allocated to.

 

There is a guide here to help you fill it in Bob:

 

Allocation Questionnaire - Consumer Wiki

[bobneedhelp]

ukaviator

this allocation questionnaire after it has been return to court by 5 Jan 09, the court will decide a date for trial. what will happen in this trial?

BNH

 

X20, ukaviator, andrew1 and all,

 

I have received another letter today from hamptons legal. WHAT DO I NEED TO DO? Please help!!

 

letters states:

Quote

We enclosed copy application filed at court today in compliance with the order dated 10 December. We will serve you with the witness statement in support of the application shortly.

pp signature

 

next page - Application notice N244

 

name of court - xxx

claim no - xxx

claimant - lowell

defendant - xxxx

date -29 december 08

 

This is the answer on it.

1. what is your name - lowell

2. claimant

3. the claimants time for filing amended particulars of claim to be extended until 3 working days after the hearing date. the reasons for the application will be set out in the witness statement from xxxx (Title) for the claimant, and the claimant will particularly rely upon provisions of CPR 3.9 (1)

 

4. have you attached draft order - No

5. At a hearing

6. 20 mins

is time agreed by all parties - No

7. details of fixed trial date - None

8. District Judge

9. Defendant

10 The attached witness statement (no other written statements included)

Statement of Truth

Signed

11. Signature and Address

Signed

 

Application's address to which documents about this application should be sent: lowell portfolio ....

[enamae]

Hi Bob. I'm not really sure of the process, but, you need to complete and return your Allocation Questionnaire by the 5th January. I'm sure someone will be along tomorrow to help you with the details.

 

I think the letter you received on the 30th, is as it says just a copy of the claimants application for the extension, and there's nothing for you to do at the moment.

 

Try to relax and get a good nights sleep.

 

enamae

[bobneedhelp]

enamae

Thanks will try but mind over matter i know is much easier said than done and for whatever reasons ...i know i should but not too successfully ..anyhow ...just accept this to be for the moment and hope it improves as the days goes by ...

BNH

 

X20, ukaviator and all,

Do I just follow the instructions given to complete the Allocation Questionnaire? If so, I will try to complete and post for advice. Thanks.

BNH

[enamae]

Hi Bob. How are you getting on with the Allocation Questionnaire, do you need any help?. I think x20 may be away for a few days, so if you are having any problems we need to find someone else to help with any questions you're not sure about.

 

enamae

[bobneedhelp]

enamae

Thanks very much - Yes I do need help - I will try to complete the AQ form as much as possible according to the suggestions. This is the best I can do and will post it later tonight to see if someone can advise me on.

BNH

[steven4064]

Have a look at http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html bit don't use the drfat directions from there, use this http://www.consumeractiongroup.co.uk/forum/bank-templates-library/147609-draft-order-directions-including.html

[bobneedhelp]

steven4064

Thanks very much for coming and showing me the direction ...I know x20 is busy and this is of great help. I will now read through and complete the AQ and would it be alright for me to post here for further advise? or PM first for advise before posting on thread.

 

This is such a huge relief beyond words ...thanks.

 

BNH