Court claim from Lloyds TSB - Advice needed please.

[AndyOrch]

Hi

 

You must head the above letter REQUEST FOR INFORMATION CPR 18

otherwise they will ignore it.If you can change your template 42man we had problems off other posters sending the above

 

Regards

 

Andy;)

[AndyOrch]

Hi joan

 

Difficuilt to advise without the details of the Claimants P.O.C I have re checked your thread but for the life of me cant see any reference to it?

 

 

Regards

 

Andy;)

[AndyOrch]

Judging by the detail of the P.O.C this is not a Northampton Claim (CCBC)?

Did you recieve a Default Notice? Post a copy if poss less personal details?

Did you make any attempt re payment plan etc?

 

 

Regards

 

Andy;)

[AndyOrch]

Hi Joan im with you now;)

 

Andy

[AndyOrch]

Ok I think the defence is too long too indepth after all its only a CCBC summons you could submit jack and jill and get the same response as long as you defend its automated at Northampton

 

Andy

[AndyOrch]

You need to put enough in that will imply to the Claimant that you are up to speed on the matters and enough to frighten them off Ill post you one of mine shortly

 

 

Andy:)

[AndyOrch]

Hi 42 no probs i am always available for Cag and your threads (congrats by the way is see you pink nice to see someone worthwile ofthe status)

 

 

Regards

 

Andy;)

[AndyOrch]

Defence

 

The Defendant admits that in or about XX/XXX/XXXX (he/she) entered into an agreement with Capital One and which was an agreement regulated by The Consumer Credit Act 1974 (The Act).

 

The particulars of claim are vague and do not provide sufficient detail to enable the defendant to plead effectivley or at all. By way of example the claimant has failed to confirm the date of Agreement/Account numbers upon which the cause of action is based.

 

The Defendant has no recollection of and makes no admissions regarding the precise purpose of the agreement or of its terms, conditions and other provisions or what would constitute a breach thereof. The Defendant denies that the agreement was a properly executed agreement and denies committing a breach thereof.Notwithstanding the matters pleaded above, the claimant must under section 87(1)also sections 76(1) and 98(1) of the CCA 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

Prior to the issue of the action the claimant was requested to disclose documents relating to the alleged debt and/or agreement. The claimant failed and/or refused so to do.

 

The documents described above were the subject of a request pursuant to Section 78 ofthe Consumer Credit Act 1974 and CPR 18 request

 

It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate

 

It is denied that Capital One served a default notice upon the Defendant, alternative a default notice complying with the provisions of section 88 of The Consumer Credit Act 1974.

 

It is admitted and avered that since the termination identified above,capital One have made demand of the Defendant for the payment of money the subject of this claim.

 

Incorporated within the sum demanded by the Claimant are sums claimed for their administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

Further and in any event, by reason of the matters set out above and the requirements of section 87(1) of the Act, the steps taken by Capital One hereof were steps which Capital One were not entitled to take.

 

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

 

In the circumstances the facts and matters set out in the Particulars of Claim do not give rise to an entitlement to claim any of the relief now sought by the Claimant.The Claimant’s claim to be entitled to £xxxxxxx to interest or to any other sum is denied.

 

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 aforesaid reasons

 

 

 

 

[AndyOrch]

Edit to suit that will send them packing;)

 

Andy

[AndyOrch]

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

 

Particularly important to you considering the harassment they have put you through and implies that you may CC for same

 

Andy;)

[AndyOrch]

Go girl:D

[AndyOrch]

OK thanks Andy I've been through that now. If you're still there I've got a couple of questions...

 

 

 

Have they failed to confirm this by their solicitor not responding to my request for information? Yes

 

 

 

They've issued 2 default notices so do I edit this bit out? Or am I just not admitting to having received them as per below? Yes they dont keep a copy so you can use this at disclosure

 

 

 

 

 

 

Yeah that's well sexy language. I might give up my aspirations of becoming a literary genius and just down pencils and start a law degree. Now I realise why lawyers find it all so alluring! It's like, coded hostility innit? Love it.

 

One more thing. Is there a reason for the italicised section to be in italics?

no convert it

Post up your final defence and I will give it the once over before submission

Regards

Andy:cool:

[AndyOrch]

Solictors call it dinner but never mind welcome to the club BTW what you having?

 

 

Andy

[AndyOrch]

sounds delicious

[AndyOrch]

Morning Joan

 

The section reference Notice of Assignment does not apply to your case as trhe debt is still with the OC ( original creditor) remove this.

Why are you emailing the above anyway, you can input on line via MCOL considering the claim is CCBC ( Northampton) there should be a password on the summons to enable this.

 

 

Regards

 

Andy;)

[AndyOrch]

Hi

 

Yes thats fine Good Luck with your submission

 

 

Regards

 

Andy;)

[AndyOrch]

I bet you feel better now Joan and you are very welcome lets hope it achieves said outcome.Myself and the Cag team are always available should you require further assistance

 

Kindest Regards

Andy;)

[AndyOrch]

Ah well, I haven't gotten anywhere with the charges issue anyway, so no matter, hey ho...

 

However, what I have got is a thing called an allocation questionaire, which I've to fill in and send to Sheffield County Court by the 10th November. N149/N150?

 

A lot of it looks straightforward...at first. But then, I strat wondering what do do for the best.

 

For instance, Part A. Settlement: do I 'try to settle', given that I'm arguing they have no case? Is that likely to look bad if I don't? If I don't want to settle or arrange mediation, what are my reasons? Can I just quote the gist of my defence? The fact that you are requesting settlement,is in no way an admittance to any alleged debt.It only projects an image of amicabilty to the Courts.Shows that in the interests of Court time and Costs you are open to sort this fiasco out either with the Courts assitance or without.

 

 

Part B seems easy enough, and it's seemingly being heard at Sheffield anyway.

 

Part C. "Pre-action Protocols"? Type This case is not covered by any approved protocal Ihave tried to act reasonably in exchanging information and documents relevent to the claim but have had no response from the Claimant in this regard I like to think I have complied, and sent the other side all that they need from me, but I'm not 100% sure here.

 

Part D. I guess I'm disputing it all. Type the amount the Claimant claims Not costs or sol fees Applications None and witnesses I think I need to say no, Yourself as the witness but is that right? Ditto with experts. None

But then, we're onto what track I want. Not sure here either. What's best? If its the N149 its SCT Small Claims track N150 fast track or Multi depending on amount of claim

 

Part E. How long will the hearing take? 1 day? 4 hours

 

Part F. Proposed Directions. This is where I'm lost. I'm not sure what I need to write or do for this bit. Am I saying that I want the case struck out, because XXX blah blah blah, along the lines of my defence? Leave for now will come back to this tomorrow

 

G. I can ignore

 

H. is scary, seeing as I have no money (quite literally at the moment). I don't think I have to pay a fee though. Am I right? That's what the notes suggest. Correct the Claimant pays the fee

 

Section I. Other info. Again, is there anything I should say here? leave for now will come back to this tomorrow

 

I'm still determined to stand up to them but it's getting a bit scary. Looking at some other threads though, I'm still convinced that my defence is strong and their case is weak.

 

I guess I need to send this form off by Friday, so any help would be hugely appreciated, even if only giving me a bit of confidence in what I'm putting on the form.

 

 

Regards

 

Andy

Edited November 5, 2008 by Andyorch

[AndyOrch]

Hi Joan here is an example of Directions (Courtesy of SAx20)which are similar to what i would propose

 

Sign and date the AQ on page 5 and fill out your address etc.

 

Attach to the AQ

[1] a copy of your CPR 18 letter and

[2] a sheet of paper on which you copy and paste the following as your proposed directions:

 

Proposed Directions

 

1 The Claimant shall by (date / time) comply with the Defendant’s request made (date) pursuant to CPR 18 by supplying to the Defendant true copies of each of the documents mentioned in the Particulars of Claim, namely

(a) the agreement relied upon

(b) the default notice

 

2 If the Claimant shall fail to comply with paragraph 1 of this order, the Particulars of Claim shall be struck out and the Defendant shall be at liberty without further order of this court to apply for judgment upon his Defence and for the costs of this case to be paid to him by the Claimant to be subject to detailed assessment proceedings pursuant to the provisions of the Litigants in Person (Costs and Expenses) Act 1975 if not agreed.

 

3 If the Claimant shall comply with this order, the case shall be stayed for a period of one month from the date of compliance.

 

4 [such further directions as necessary to manage the period of stay to include in the event that a settlement is not reached, directions for the case to be allocated to track and other desirable case management directions]

 

Signed:

 

Dated:

 

 

Regards

 

Andy:)

[AndyOrch]

I would advise you (on receipt of the order) to make an application (N244) without hearing and at no cost to you.

 

I would suggest something along the following lines

 

In the light of the order of Judge ???? dated ??/??/?? striking out the statement of case of the Claimant, I hereby apply for judgement to be entered against the Claimant.

 

I further apply for defence costs under CPR 27.14(2) of £??.??, which is calculated as follows:

 

 

 

Costs under CPR 27.14(2)(g)

 

I also respectfully ask the court to award costs of £?.?? due to the claimant's unreasonable behaviour in issuing a claim without following pre-action protocols, and their subsequent failure to provide evidence to substantiate their case. I estimate that it has taken me ?? hours to research and prepare my response to their action @ £9.25 per hour, which is a total of £??.??, plus £?.?? which I estimate I have spent on postage, printing and stationery.

 

 

 

He may agree these, he may not - but if you don't ask, you don't get!

[AndyOrch]

Aha. So I don't submit my claim for costs at this point? The pre-Trial Questionnaire seemed to suggest I should. Or is that just an estimate?Yes Hmm...think I've misunderstood. Durr...

 

It's only after they get struck out that I actually claim my costs?

Correct

 

 

Regards

 

Andy

[AndyOrch]

Hi Joan Itrust you are well?

 

You will be fine as CB says just be yourself and courtious and lets hope you get a half decent DJ.

 

Regards

 

Andy;)

[AndyOrch]

Joan

 

you have come along way from the start of your thread and I wish you all the luck for your case tomorrow

Fighting back does take courage, but it's a lot easier than you might think! If some people have opted to write to creditors and challenge what they're doing, that shows a determination to fight back! A Court claim is no different! Whenever you are questioning/challenging someone else's point of view, you are making an argument, so there's nothing to stop you doing it in front of a Judge, if you have to! They're human beings as well and some of them are even quite nice! If you get a stroppy one, just imagine him sat on the toilet, he won't seem quite so intimidating

then! go show them girl

 

Kind Regards

 

Andy

[AndyOrch]

"Thanks andyorch, you've been here from the start too and thanks for all your advice. I actually thanked you and 42man in the acknowledgements appendix of my book which I'm sure one day you'll see."

 

Thanks Joan we are truely honoured to be of assistance.

 

 

Regards

 

Andy

[AndyOrch]

I think we can all confidently summise round one to Joan well done and fast track to boot

 

Excellent news Joan keep us posted;)

 

Kind Regards

 

Andy