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

[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

[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

[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:)

[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

[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

[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;)

[AndyOrch]

Now just to clarify my next move:

 

 

 

 

1. Complete Application Notice as above to include this morning’s amendment. Correct

 

2. Attach a copy of our defence. Correct

 

3. Attach our letter. Correct

 

4. Include court fee Correct

 

5. Do not complete Counter Claim Detail, as per the defence letter where we say

 

‘The only reason we have not fully particularised our 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.’ not quite we have the detail to now submit the CC so omit "or submitted a counter claim" or change to at this stage, the AN is requesting permission to submit a Counter Claim at a later stage to the process which we will do seperatly after you have clarified with your CC what form you need and how they wish ou to submit it

 

However, we are submitting a particularised defence aren’t we? Correct

 

Sorry to be pedantic but I don’t want to contradict myself in this AN.

 

Does this look right to you?

 

 

Cheers

 

Hope the above clarifies

 

Regards

 

Andy

[AndyOrch]

The problem you have when submitting a counter claim is that you walk a fine line in other words it has to balance with your defence.You can not counter claim if you are stating that you have no recollection of any alleged debt.By way of your application you are ordering the unfurnished information to be provided if they still fail then you will request a strike out so we then forget the counter claim.

If we word the AN and attached letter in a way that states provide said missing information or a counter claim will follow you have more bargaining power and the case is on the other foot so to speak.All bases covered.

 

Regards

 

Andy

[AndyOrch]

Evening all

 

Can anyone out there tell me how long you're supposed to be given to remedy a Default Notice? 14 Days + 3 for service I know I've read it on here about a million times but I'm going boss eyed putting together my witness statements and just thought someone might have the answer on the tip of their tongue!

 

thanks!

Madi's Mum

 

Hi Madis Mum

 

Here are some sections on DN in a successful WS, may be of use:-

 

 

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a Letter Before Action on the XXXXXXXXX demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

13 In these circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

14 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

Regards

 

Andy

Edited August 17, 2009 by Andyorch

[AndyOrch]

Hi Madis Mum

 

look s good but i would not advocate quoting case laws, not needed in a WS.

 

Regards

 

Andy

[AndyOrch]

Post up your final draft and the Claimants, if recieved and i will give it a final check

 

 

Regards

 

Andy

[AndyOrch]

Will do' date=' although nothing received from the Claimants - I expect it will arrive tomorrow.[/quote']

 

Have you recieved a copy of their application it should be attached

Check the DJ order what date are you to file and serve by?

 

Regards

 

Andy

[AndyOrch]

Just a point on the format of the WS - where I have included reference to documents sent or received more than once do I copy that document as many times as is mentioned and reference each item uniquely although it may be the same or do I just give one reference to each unique document and refer back to the same reference each time it is mentioned?

yes;)

Andy

[AndyOrch]

spot on

 

Regards

 

Andy

[AndyOrch]

No individual statements,can be the same just diff defendents

 

 

Andy

[AndyOrch]

OK' date=' so I need to do the two witness statements one in each name, do I prepare two seperate sets of the supportng documents? Yes

 

As my OH will not be attending court I believe he should write to the judge excusing himself - is that right? If hes not required to attend

 

ta very much!

 

Andy

[AndyOrch]

Update: I have just received a 'Notice of Discontinuance of Proceedings' from their solicitors' date=' it says:[/font']

 

"Take Notice that the Claimant herby wholly discontinues this action against the Defendant.

 

We certify that we have given Notice of Discontinuance of proceeding to every Defendant against whom the Claimant desires to discontinue."

 

I understand that this means they won't be taking me to court but can they still chase the debt or sell it on?

 

 

Excellent Madis Mum we seem to be on a role this week you are my 4th.

They would have to seek good reason from the Court to further any attempt or sell it on is a no no also.

Ok you need to confirm the CC as recieved same.

No mention of costs?

Consider a claim for your wasted costs.

 

 

Delighted for you well done

 

Regards

 

Andy;)

[AndyOrch]

Thanks Bill

 

 

 

Andy

[AndyOrch]

Hi Madis Mum

 

Even though the amount was in excess of 15k you did request it be handled at SCT and did file the N150 AQ correct.Was it actually allocated to SCT?

 

Regards

 

Andy

[AndyOrch]

Hi Madis Mum

 

Even though the amount was in excess of 15k you did request it be handled at SCT and did file the N150 AQ correct.Was it actually allocated to SCT?

 

Regards

 

Andy

 

Costs can be awarded at SCT dependent on the DJ discretion and the behaviour of the Claimant so i am going to throw this back in for consideration

 

Dear Sir or Madam

 

 

Re Claim Number XXXXXXXXXXXXXX

 

I have received notice of discontinuance for the above claim from your company. I am prepared to accept this with a view that the matter is closed and will not make any application to set aside the notice although I am advised that I have this option.

 

I attach a schedule of costs with a full break down as to the amounts claimed and the reasons why. I would invite your client to pay my costs, however if they refuse then I will be left with no option but to make a formal application to the court to have my costs assessed by the court

 

I trust that this will not be necessary and that your client will resolve this amicably

 

I look forward to your reply and would ask that your reply is received by no later than 4 pm (DATE 21 days from now)

 

Yours faithfully

 

Regards

 

Andy

[AndyOrch]

OK Andy

 

I'll get together a breakdown of costs and send it off - they can only say no I suppose!

 

Am I right in thinking I can claim for:

 

1. My time

2. Postage (within reason)

3. Application fee

4. Photocopying (my court bundle was approximately 250 pages as it included the bank statements!)

 

Anything else?

 

 

Court attends /Travel/ time off work £9.25 @hr LiP

 

Cheers

:):):)

 

I dropped the CPR ruling from the letter hopefully if you deal direct with the Claimants Sols you may just wing it without need of an Order.

Costs reserved means what it says reserved for what;)

 

Regards

 

Andy

[AndyOrch]

Exellent

What you dont ask you dont get you could even be cheeky and also ask that any adverse information be removed from the CRAs but that a choice for you.Enjoy the moment and crack open a bottle tonight with Hubby.

Im smiling as much as you are:):)

 

Delighted

 

 

Andy