Phoenix/Cater Claimform - Joint LTSB OD Debt **WON - DISCONTINUED**

[madi's mum]

Oh and Yes the claim was originally raised with Northampton (ccbc) but has been transfered to our local court.

[AndyOrch]

Thanks

 

Well that is one of the most noncomital AQs i have ever seen.The fact that they have requested SCT on a value of that amount is bizzar to say the least.Given the fact that SCT case are quite contained re disclosure but good from a costs point of view.

I would now suggest that you either download N244 (application notice) or pick one up and submit your counter claim. This will cost you £75.00 pity because you could have done a part 20 Counter Claim when it was still with Northampton via MCOL.

I will re read your thread again tomorrow and then make some suggestions on which way to proceed with this.

 

Regards and sleep well

 

 

Andy;)

Edited October 13, 2008 by Andyorch

[madi's mum]

Many thanks as always Andy.

 

Night

 

Madi's Mum

[madi's mum]

Hello Andy

 

I've got the N244 Application form but, surprise surprise am in need of much assistance and hand holding to complete it! I've typed in the questions and set them out below although I'm sure you know the form back to front! it would be great if you could help me complete this by the end of the weekend as I really should get it to the court on Monday.

 

Also, does this form go in in place of my defence or as part of it?

 

Here are the questions:

 

 

3. What order are you asking the court to make and why?

 

4. Have you attached a draft of the order you are applying for?

 

5. How do you want to have this application dealt with?

 

At a hearing

 

Without a hearing

 

At a telephone hearing

 

6. How long do you think the hearing will last?

 

Is the time estimated agreed by all parties?

 

7. Give details of any fixed trail date or period

 

8. What level Judge does your hearing need?

 

9. Who should be served with this application?

 

10. What information will you be relying on, in support of your application?

 

The attached witness statement

 

The statement of case

 

The evidence set out in the box below

 

Thanks as always

 

Madi's Mum

Edited October 10, 2008 by madi's mum

[AndyOrch]

Hi Madis Mum

 

I have to leave shortly for an appointment and will be out most of the day is it ok if I come back to you later on this,certianly before Monday anyway. Its quiet straight forward to complete. With regards to your opening question no its not in place of your defence, a Counter Claim is what it is you claimimg against them for the penalty charges applied to their claim.

 

 

I trust the above makes sence

 

 

Regards

 

Andy

[madi's mum]

Hi Andy

 

Hope you've had a good weekend so far ...

 

Been busy drafting my defence which I should appreciate your critique on, here goes:

 

______________________________________________________________

 

 

In the Toyland County Court

Claim number

 

Between

 

 

 

 

 

 

 

 

 

PHOENIX RECOVERIES (UK) LTD S. RE: PHOENIX RECOVERIES (UK)LIM

 

 

Claimant

 

 

 

and

 

 

 

 

 

NODDY & BIG EARS

 

 

Defendants

 

 

 

 

 

Defence

 

 

• We Noddy and Big Ears of 123 Neverland Way, Toytown are the defendants in this action and make the following statement as my defence to the claim made by PHOENIX RECOVERIES (UK) LTD S. RE: PHOENIX RECOVERIES (UK)LIM
  

 

• The Defendants denies that they are liable to the Claimant as alleged in the Particulars of Claim, or at all. 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, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd 1915, under 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, W.F.Harrison and Co Ltd v Burke 1956.
  

• The defendants require sight of the deed of assignment of the debt. In addition the defendants require proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendants requests this information is inter alia to clarify the dates are correctly stated on all documents, the defendants note that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - 1956 2 All ER 169
  
• The Claimant, possessing no legal right to claim monies allegedly owed, has acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed regarding that which is denied, contains penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd 1915, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.
  

• It is therefore averred that the Defendants do 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.
  

• Regarding that which is denied, on 16th September 2008 the court issued directions which ordered that:
  

• 
  
  • “The Claimant shall by 26th September 2008 send to the Defendant and to the Court
    

• 
  
  • Allocation questionnaire in form 150.
    

• 
  
  • Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely.
    

• 
  
  • Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.
    

• 
  
  • Document, contract or deed of assignment.
    

• 
  
  • Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
    

• 
  
  • Copies of any statement or other document relied upon”
    

To Date the claimant has failed to comply with the directions of the court and have only furnished the defendants with:

 

a. A ‘screen print’ from Lloyds TSB with regards to the Default Notice with a note to the effect that the Default Notices are system generated at Lloyds TSB and that they are still awaiting reproductions from them.

 

b. A reproduction of the assignment letter sent, this is merely a generic letter with no personal detail or account numbers on it.

 

c. A reproduction letter of when Fredrickson International Ltd were instructed to collect this debt, again merely a generic letter with no personal detail or account numbers on it.

 

d. Copy statements of account relating to the overdrawn account which clearly show penalty charges which we believe to be unfair as noted above.

 

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

 

 

 

• The Defendants deny that there has been any failure to make payment in accordance with the alleged contract. The Claimant has 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 8% per annum. It is therefore averred that this claim is brought in relation to an overdraft which is credit as defined within the Consumer Credit Act 1974, 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
  

• 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.
  

Statement of Truth

 

We, Noddy and Big Ears, believe the above statement to be true and factual.

 

_______________________________________________________________

 

Well that's it - mainly gleened from other threads you've contributed to and adapted to suit (I hope).

 

Cheers

 

Madi's Mum

 

 

 

[AndyOrch]

Hi Madis Mum excellent weekend thx

 

Excellent defence couldnt have done better myself:D I presume its your intention to submit an amended defence and counter-claim? via the N244.

 

 

Regards

 

Andy:)

Edited October 13, 2008 by Andyorch

[madi's mum]

Hi Andy

 

Thanks for the words of encouragement - I'm not too sure how to proceed now with regard to the counter-claim so I'll read up on the notes for the N244 and hope to catch you online sometime this evening as I will have to file the defence at court tomorrow without fail.

 

Kindest regards

 

Madi's Mum:)

[madi's mum]

Hi Andy

 

Sorry to get back to you so late, I've drawn a bit of a blank with regard to completing the counter claim details can you give me some help with this tonight?

 

Hope to hear from you.

 

Regards

 

Madi's Mum

 

[AndyOrch]

Hi almost given up on you;)

 

Ok you need to submit via the AN an amended defence which you have done and also request by way of the AN a request to submit a Counter Claim do you have the AN to hand?

 

 

Andy

[madi's mum]

Yep - got one here and raring to go!

[AndyOrch]

Wish i was a raring as you long day so far ok lets get it done

 

Have you a black pen to fill in the form? Complete it in capitals unless I state otherwise. We will start with the box on the left hand side, directly under the words Application Notice.

 

Q1. Tick C-without a hearing.

Q2. Leave blank

Q3. Tick no

Q4. Leave blank- no trial period/trial date has been set yet

Q5. Write-District Judge

Q6. Write-Name of Solicitors and in brackets (Claimant's Solicitors)

 

Okay moving on to the box on the right hand side. At the top you will see the words In the. In that box you need to write the full address of the County Court that's dealing with your case, where your husband filed the allocation Q. So it might be something like for example, In the, Portsmouth Crown and County Courts, followed by the address.

In the next box underneath, write the claim number.

Warrant No-leave it blank, it doesn't apply.

Claimant-As their name appears on the claim form.

Defendants-Your name and your husband's if it's joint.

Date-Put Wednesday's date if that is when it is going to be taken to the Court or posted. If you post it do it by g/d.

 

We'll move to the next part as soon as you let me know you're happy with what you've done so far. Can you remind me if the debt is joint or not. Let me know as well if you intend to take it to the Court or post it.

 

 

More to follow

[madi's mum]

Hi Andy

 

My numbering doesn't correlate to your info, the questions on my AN are as follows:

 

3. What order are you asking the court to make and why?

 

 

4. Have you attached a draft of the order you are applying for?

 

 

5. How do you want to have this application dealt with?

 

 

At a hearing

 

 

Without a hearing

 

 

At a telephone hearing

 

 

6. How long do you think the hearing will last?

 

 

Is the time estimated agreed by all parties?

 

 

7. Give details of any fixed trail date or period

 

 

8. What level Judge does your hearing need?

 

 

9. Who should be served with this application?

 

 

10. What information will you be relying on, in support of your application?

 

 

The attached witness statement

 

 

The statement of case

 

 

The evidence set out in the box below

 

 

Sorry if I'm being ditzy - maybe the raring to go bit was an overstatement!

 

cheers

 

Madi's Mum

[AndyOrch]

Hi Andy

 

My numbering doesn't correlate to your info, the questions on my AN are as follows:

 

3. What order are you asking the court to make and why?Amended Defence and Counter Claim

 

 

4. Have you attached a draft of the order you are applying for?Defence & Counter Claim attached

 

 

5. How do you want to have this application dealt with?

 

 

At a hearing

 

 

Without a hearing Tick

 

 

At a telephone hearing

 

 

6. How long do you think the hearing will last? Blank

 

 

Is the time estimated agreed by all parties? Blank

 

 

7. Give details of any fixed trail date or period no trial period/trial date has been set yet

 

 

8. What level Judge does your hearing need? District Judge

 

 

9. Who should be served with this application? Name of Solicitors and in brackets (Claimant's Solicitors)

 

 

10. What information will you be relying on, in support of your application? Amended Defence and Counter Claim

 

 

The attached witness statement Blank

 

 

The statement of case Blank

 

 

The evidence set out in the box below Blank

 

 

Sorry if I'm being ditzy - maybe the raring to go bit was an overstatement!

 

cheers

 

Madi's Mum

 

Yours must be a newer version lets proceed

 

 

Andy

[madi's mum]

Great - ready for the next bit now.

[madi's mum]

Oh, in answer to your earlier question - I will take this to the court tomorrow.

[AndyOrch]

Okay, back to the form. Part A.(1.) Put a short line through WE and then print your full name in that space. Put lines through on behalf of, and the claimant, leaving the defendant untouched.

 

Moving on to point (2.). Directly underneath the intend to apply for an order etc.... write the following:

The Defendant seeks an Order to submit an amended defence and counter claim

 

You will have to write that in what is a very small space(the design isn't very good:rolleyes:). You need to make sure it doesn't overlap with

Part (3.) and the word because. Directly underneath the word because write, Please see attached letter.

 

Part B. Put a line through We and tick the box evidence in Part C etc....

Sign it. Directly under the signature box put a line through 's Solicitor and 's litigation friend. Leave Position or office held box blank.

 

The box underneath your signature, write in your full address, include your tel no and definitely your p/code. Include a fax no, and/or an email address if you can, it helps the Crt in case they can't contact you by phone.

 

Turn the form over. In the top right hand corner write the Claim No. Put a line through We. Again write, Please see attached letter.

 

Statement of truth. Put a line through The applicant believes. Sign it, put a line through the 2nd & 3rd options under the sig. Position or office held, leave blank. Again, date it according to when your husband will be filing it. I know this is a stupid comment, but the dates must be the same on both sides of the form (sorry for that!)

 

There you go one completed app notice! Photocopy both sides.Original to go to the Court. Copies for you and the Claimant. I will draft you a letter shortly

 

I assume you are paying the fee? This will have to be paid when the app notice is submitted.

 

Andy:)

[madi's mum]

OK Andy - I think they must have completely changed the layout of this form although I've been able to fit your directions to it! I'll post the form as I have completed it in a mo.

 

I will pay the fee when I take the paperwork to court tomorrow - thanks for your help this evening, once again, sincere apologies for the lateness of the hour, unfortunately my 3 year old has no regard for the fact that his mum has important stuff to get through!

 

Madi's Mum:)

[AndyOrch]

"unfortunately my 3 year old has no regard for the fact that his mum has important stuff to get through!" I know the feeling but mine are all in Uni now it gets easier I assure you

 

Ok this is a copy of another letter used on another AN you may use it edit to give you some idea,I appreciate that you are submitting an amended Defence however the enclosure of the letter is not privy to the Claimant and affords you the opportunity to state why you have needed to make this application you are still notin reciept of everything requested so is applicable in you case.

 

Dear Sir/Madam,

 

I am making this application due to the Claimants continued refusal to furnish information that I have requested, which has prevented me from properly particularising my defence and also precludes me from filing a counter-claim.

 

Originally, I requested a copy of the alleged agreement from the Claimants on the 14th March 2007. That letter was also faxed to the Claimant’s Solicitors on the same day. I sent a Subject Access Request under section seven of the Data Protection Act 1998, to the Claimant on the 19th March 2007 also, (a copy is enclosed) in response to their Court claim issued on the 8th March 2007. The Claimant has largely failed to comply with my Subject Access Request and the document furnished by the Claimant in a letter dated the 29th March 2007, is not a copy of an agreement that the alleged debt refers to. I sent a further letter to the Claimant, which was also faxed to their Solicitors on the 29th March 2007, (a copy is enclosed) in which I re-iterated my request for information previously sought; I also stipulated that additional information was required, having taken advice in respect of my case. I felt it was appropriate to remind the Claimant of their obligations under the Civil Procedure Rules to furnish said information, given the difficulties I have encountered thus far in obtaining what I needed to respond appropriately to their claim. I insisted that said documents be furnished by the 9th April 2007, to enable me to file a complete defence, the deadline for which, was the 10th April 2007.

 

I waited until the last moment to file my defence in the hope that the Claimant would furnish the information requested. They failed to provide it and consequently the defence filed was incomplete. This was stated in the defence and I subsequently addressed the issue of the Claimant’s unreasonable behaviour in the Allocation Questionnaire also.

 

Rather than furnish the information that was requested on more than one occasion, the Claimant through their Solicitors, have sought to gain an unfair advantage in this case. In letters dated the 18th April, 26th April and 11th May 2007, from Drydens, (copies are enclosed) the Solicitors have asked that I elaborate on points raised in my defence in respect of the alleged agreement. Had the Claimant provided the documents required to enable me to file a complete defence and counter-claim, there would have been no need whatsoever, for them to initially request and then subsequently insist, that I disclose my arguments prior to being able to submit a complete defence and counter-claim. It is my view that if I accede to the Claimant’s demands, they will benefit from having the option of deciding whether or not to discontinue their claim, before I have had an opportunity to amend my defence and submit a counter-claim.

 

Respectfully, I would ask the Court to compel the Claimant to furnish the information sought under my Subject Access Request and in my letters dated 14th and 29th March respectively; by a date the Court deems appropriate, given regard to the fact that the Claimants have had a considerable amount of time already to comply with said requests.

Additionally, I would like to seek the Court’s permission to amend my original defence and to file a counter-claim when the information requested is furnished by the Claimant.

 

Finally, the Court may deem it appropriate and reasonable to dispense with the scheduled Directions hearing on the 18th July 2007. I am asking the Court to consider this option because the Claimant’s request for a hearing centres upon narrowing the issues in dispute and, as I have explained, the only reason I have not fully particularised my defence or submitted a counter-claim, is solely attributable to the Claimant’s wholly unreasonable behaviour, in refusing to provide the information I requested, to respond to their claim. They have in my opinion managed to frustrate these proceedings thus far by being entirely unco-operative, and displaying scant regard for the Civil Procedure Rules. I believe that the hearing will be a waste of the Court’s time and resources and is being used by the Claimant and their Solicitors as an attempt to intimidate me in these proceedings, as I am a litigant in person. Having regard for the Overriding Objective in terms of saving time and money; respectfully, I would suggest that this matter can be resolved quickly without the need for a Directions hearing if the Claimant is compelled to furnish the information requested.

 

Yours faithfully.....etc

 

 

I trust the above has been of assitance and wish you well with your case

 

Kindest Regards

 

Andy

[madi's mum]

Here's the AP as I will complete it:

 

1. What is your name or, if you are a solicitor, the name of your firm?

 

Mr N. ODDY & MISS B. IGEARS

 

2. Are you a: Claimant, Defendant, Solicitor or Other

 

DEFENDANT

 

3. What order are you asking the court to make and why?

 

THE DEFENDANT SEEKS AN ORDER TO SUBMIT AN AMENDED DEFENCE AND COUNTER CLAIM. PLEASE SEE ATTACHED LETTER FOR REASONS.

 

4. Have you attached a draft of the order you are applying for?

 

YES – DEFENCE AND COUNTER CLAIM ATTACHED

5. How do you want to have this application dealt with?

 

WITHOUT A HEARING

 

6. How long do you think the hearing will last?

 

BLANK

Is the time estimated agreed by all parties?

 

BLANK

7. Give details of any fixed trail date or period

 

NO TRIAL PERIOD/TRIAL DATE HAS BEEN SET YET

8. What level Judge does your hearing need?

 

DISTRICT JUDGE

9. Who should be served with this application?

 

BRYAN CARTER SOLICITORS + THEIR FULL ADDRESS

10. What information will you be relying on, in support of your application?

 

AMENDED DEFENCE AND COUNTER CLAIM

The attached witness statement

 

BLANK

The statement of case

 

BLANK

The evidence set out in the box below

 

BLANK

[madi's mum]

Thanks for that Andy, I'll work on the letter now and get it to the court tomorrow - Am I right in thinking that I do not put the details of my cc in this AN but wait for the claimants to respond to the amended defence?

[AndyOrch]

Yes thats fine now with regards to the Counter Claim you may be able to use the original one in your Northampton pack or check with the court and pick up a fresh version from your local CC.The main thing is the AN requesting permission to do so.If you need help completing it I will be around in the morning

 

Andy

[madi's mum]

OK - thanks for all your help tonight - sleep tight!

 

Madi's Mum:D

[madi's mum]

Morning Andy

 

here's the letter I came up with from your original - any pointers?

 

Dear Sir/Madam,

 

We are making this application due to the Claimants continued refusal to furnish information that we have requested, which has prevented us from properly particularising our defence and also precludes us from filing a counter-claim.

 

On 24th July 2008 we each sent a CPR Part 18 request by recorded delivery to the Claimant (a copy is enclosed) in response to their Court claim issued on the 09th July 2008. We received no response from the Claimant to this request.

 

On 16th September 2008 Deputy District Judge XXXXX ordered that the Claimant shall by 26th September 2008 send to the Defendant and to the Court:

a. Allocation Questionnaire in the form 150.

b. Copies of the Credit Agreement and nay documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely.

c. Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

d. Document, contract or deed of Assignment.

e. Notice of Assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

f. Copies of any statement or other document relied upon.

 

To date the claimant has largely failed to comply with my CPR Part 18 Request and the directions of the court and have only furnished the defendants with:

 

a. A ‘screen print’ from Lloyds TSB with regards to the Default Notice with a note to the effect that the Default Notices are system generated at Lloyds TSB and that they are still awaiting reproductions from them.

 

b. A reproduction of the assignment letter sent, this is merely a generic letter with no personal detail or account numbers on it.

 

c. A reproduction letter of when Fredrickson International Ltd were instructed to collect this debt, again merely a generic letter with no personal detail or account numbers on it.

 

d. Copy statements of account relating to the overdrawn account which clearly show penalty charges which we believe to be unfair as noted above.

 

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

 

We waited until the last moment to file our defence in the hope that the Claimant would furnish the information requested. They failed to provide it and consequently the defence filed was incomplete and ‘embarrassed’. This was stated in the defence and I subsequently addressed the issue of the Claimant’s unreasonable behaviour in the Allocation Questionnaire also.

 

Rather than furnish the information that was requested on more than one occasion, the Claimant through their Solicitors, have sought to gain an unfair advantage in this case.

 

Respectfully, we would ask the Court to compel the Claimant to furnish the information sought under our CPR Part 18 requests and the subsequent court order; by a date the Court deems appropriate, given regard to the fact that the Claimants have had a considerable amount of time already to comply with said requests.

 

 

Additionally, we would like to seek the Court’s permission to amend our original defence and to file a counter-claim when the information requested is furnished by the Claimant.

 

The only reason we have not fully particularised my defence or submitted a counter-claim, is solely attributable to the Claimant’s wholly unreasonable behaviour, in refusing to provide the information we requested, to respond to their claim. They have in our opinion managed to frustrate these proceedings thus far by being entirely un-co-operative, and displaying scant regard for the Civil Procedure Rules.

 

We believe that any hearing without the requested information will be a waste of the Court’s time and resources and is being used by the Claimant and their Solicitors as an attempt to intimidate us in these proceedings, as we are litigants in person.

 

Having regard for the Overriding Objective in terms of saving time and money; respectfully, we would suggest that this matter can be resolved quickly without the need for a Directions hearing if the Claimant is compelled to furnish the information requested.

 

Yours faithfully.....etc

Edited October 14, 2008 by madi's mum
included judges name by mistake

[AndyOrch]

Morning Madis Mum

 

Ok on reflection of your letter and also the fact that documents still remaim outstanding I would consider adding this to the AN along with your request to amend the defence and submit a CC at Point C

 

Directly underneath the intend to apply for an order etc.... write the following:

The Defendant seeks an Order compelling the Claimant to furnish information previously requested, which they have failed to provide.

And to submit an ameneded Defence and Counter Claim

 

I think you are now good to go

 

Regards

 

Andy;)