LTSB Court claim - help please

[remus]

Hi foolishgirl, would it be at all possible for you to set my defence out, with the default notice?.

 

The ccj has been set aside, and now I need to put in my defence.

 

Any help greatly appreciated.

[remus]

Hi,

do I need to include copies of the complete Woodchester case and Kpohraror v Woolwich for the court and SCM?.

 

I have copied most of the paper work of the original claim for the court, as it is still 'lost'.

How should I word the covering letter without causing offence?

 

Just run out of paper, so will get some tomorrow, I have till Tuesday!

[citizenB]

Just giving you a gentle nudge

[supasnooper]

Hi,

do I need to include copies of the complete Woodchester case and Kpohraror v Woolwich for the court and SCM?.

 

 

If you cite a case in your defence then you must have a full copy for the Court, SCM and yourself.

 

May I also suggest that you contact the court and see if SCM have filed any documents............as they have a habit of not serving them on the defendant when they are obliged to.

[remus]

Thank you citizenB and supasnooper,

 

The order is for me to file a defence, I don't think SCM are doing anything yet.

 

This is my concern with the defence, I understand and will be using the loverly 42man's statement of evidence, but,

 

1. do I need to put SCM to strict proof of the post date for the default notice, or will that just prolong the procedure?

 

2. what orders do I need to put forward?

 

3. Should I include an order for costs with an amount?

 

Just concerned I will miss something simple.

[remus]

answered my own questions.

Edited July 27, 2010 by remus

[foolishgirl]

Just rereading your thread as requested remus.

 

Can you clarify please:

 

1. what was this hearing for - set aside, SO, CO???

 

2. why is the DJ now asking for a defence - I thought you had submitted this ages ago & been told that what you had submitted would stand for both cases?

 

3. what date do you have to have defence in by?

 

4. other comments below:

 

SCM had a representative at the hearing today, he mentioned it getting struck out, and gave me a copy of 'Securum Finance Ltd v Ashton and another', which he would of used "a second bite of the cherry".

 

Not relevant to your case & should be stressed in defence

 

The Judge asked what my defence was originally, (as my file is still 'lost'),

 

This is DISGUSTING!!! How can the DJ hold an impartial hearing when he is missing the docs you submitted. Grounds for appeal in itself!!

That said, did you not have a copy of your defence etc. with you?

 

Can you upload it to CAG or point me to the post please?

 

and I said the Default. Mr rep kindly furnished the judge with a copy.

I did ask him if it was my copy of the default, as they said they couldn't get hold of one!

 

The Judge read the dates, looked in his cpr book, and said it clearly states 14 days, and the default has been incorrectly delivered, as there is only 7.

 

I now have to base my defence on the default notice, and have about 2 weeks to do so.

 

The Judge also vacated the CO hearing, and something else (sorry, I just went blank, as I knew I was in above my head with the questions he was asking me). When I get it through, I will post exactly what he has ordered.

 

Can you post that order please?

 

 

 

I have an enforcement notice, giving intention to terminate the Agreement on said date, with a demand for £x plus interest which is accruing daily.

Default notice is dated 8 days after the intended termination, and the amount has increased by a monthly payment, and plus interest which is accruing daily.

 

Which comes first? the default or the termination??

 

Can you post these please?

 

[citizenB]

Default notice should be issued first, then the termination notice or final demand.

[remus]

"http://i185.photobucket.com/albums/x46/remus_09/scan0002.jpg"

 

Agreement.

 

 

"http://i185.photobucket.com/albums/x46/remus_09/scan0011.jpg"

 

Default

 

Here's the default notice.

 

 

Just going to upload 2 orders.

[remus]

Order 1 July

 

1 Judgement is set aside

 

2 The Defendant do file and serve a Defence by July (done)

 

3 The ICO is discharged and the hearing vacated

 

4 No order for costs

 

 

 

 

Order 2 August

 

It is ordered that

 

The court on its own motion and having ordered the parties to file Allocation Questionnaires by a separate order made today (not received yet)

 

It is further ordered that:

 

1 Simultaneously with filing the AQ the parties shall each certify to the court and to each other the total amount (less costs) that they currently consider the claim to be worth, subject to liability.

 

2 Each party shall file with the AQ file proposed directions on the form attached hereto (no form attached)

 

3 The parties shall comply with CPR PD 43 paragraph 6.4 and 6.5

 

4 Each party shall file with the AQ a completed reply to the invitation to mediate

 

I really would appreciate help with the 2nd order.

Edited August 26, 2010 by remus

[foolishgirl]

Remus, can you post the defence that you submitted please? (Sorry I wasn't around to help with it)

 

IMO the above DN is pants & can be worked to your advantage.

 

Answers to your queries on AQ below:

 

 

Order 2 August

 

It is ordered that

 

The court on its own motion and having ordered the parties to file Allocation Questionnaires by a separate order made today (not received yet)

 

It is further ordered that:

 

1 Simultaneously with filing the AQ the parties shall each certify to the court and to each other the total amount (less costs) that they currently consider the claim to be worth, subject to liability.

 

2 Each party shall file with the AQ file proposed directions on the form attached hereto (no form attached)

 

It doesn't need a form, it just get submitted on attached piece of paper.

 

3 The parties shall comply with CPR PD 43 paragraph 6.4 and 6.5

 

CPR PD 43 here: http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_parts43-48.htm

4 Each party shall file with the AQ a completed reply to the invitation to mediate

 

Your response here depends on whether you wish to mediate. Personally I don't see much point - they have unlawfully terminated before they issued DN, they are not entitled to claim full balance. Simples! However a 'without prejudice' letter with an offer for a F&F might be appropriate if you have sufficient funds available. (the sum I would suggest is the arrears as of the time of the issue of the DN 'cos that is all they should be awarded in court; however note the 'should', no guarantees)

 

What date does your AQ have to be in court?

[remus]

Hi foolishgirl,

 

The defense I used, was the one in post 144 from 42man.

 

Have not received anything else from the court yet.

[foolishgirl]

 

What date does your AQ have to be in court?

 

What date remus?? Is it specified on the order?

 

 

Have not received anything else from the court yet.

 

Did you get an AQ - Form N149 or Form 150?

If not, was the claim over £5000? That limit usually determines the form number i.e. SC or Fast track. You can download the correct form from HMCS so no worries there.

[foolishgirl]

I'm just catching up with your thread again remus.

 

Let me get this straight:

 

1. The court struck out Claim 1 because Claimant didn't return paperwork on time

 

2. **** issued Claim 2 for the same thing.

 

3. You didn't issue defence on time, judgment was made by default. You applied for set aside & got it.

 

4. Claimant has now claimed that the 2nd claim shouldn't be struck out as res judicata because of case law Securum Finance v Ashton & anor (that doesn't seem to actually apply to your case!) & the DJ has accepted this argument & issued above order.

 

5. Back to Square 1

 

Is that a correct assessment?

[remus]

I'm just catching up with your thread again remus.

 

Let me get this straight:

 

1. The court struck out Claim 1 because Claimant didn't return paperwork on time Yes

 

2. **** issued Claim 2 for the same thing. Yes

 

3. You didn't issue defence on time, judgment was made by default. You applied for set aside & got it. Yes

 

4. Claimant has now claimed that the 2nd claim shouldn't be struck out as res judicata because of case law Securum Finance v Ashton & anor (that doesn't seem to actually apply to your case!) & the DJ has accepted this argument & issued above order.

 

No. Post 137 is the hearing, and the 1st order was issued

 

Order 1 July

 

1 Judgement is set aside

 

2 The Defendant do file and serve a Defence by July (done)

 

3 The ICO is discharged and the hearing vacated

 

4 No order for costs

 

 

The 2nd order is a different Judge, and has been issued after I put in my defence as per the order above.

 

The 2nd order

The court on its own motion and having ordered the parties to file Allocation Questionnaires by a separate order made today. (not received yet) I have not received a separate order to file the AQ, so have no date.

 

5. Back to Square 1

 

Is that a correct assessment?

 

Hope this is clearer foolishgirl

[Guest]

.........The Judge read the dates, looked in his cpr book, and said it clearly states 14 days, and the default has been incorrectly delivered, as there is only 7.

 

I now have to base my defence on the default notice, and have about 2 weeks to do so...........

 

remus

 

AFAIK. 14 days re DN came into force in 19 Dec 2006! (your DN is dated 3 oct 2006). anyway, your DN doesn't even appear to provide 7 clear days after service even if deemed first class?

Edited August 28, 2010 by Ford
typo add'n

[foolishgirl]

remus

 

AFAIK. 14 days re DN came into force in 19 Dec 2006! (your DN is dated 3 oct 2006). anyway, your DN doesn't even appear to provide 7 clear days after service even if deemed first class?

 

Thanks Ford for the reminder - this had been noted, Post #68

[foolishgirl]

What date does your AQ have to be in court?

 

Did you get anAQ - Form N149 or Form 150? If not, was the claim over £5000?

 

Can you answer the above remus please?

[Guest]

Thanks Ford for the reminder - this had been noted, Post #68

 

(hadn't read through all!)

[remus]

Hi all,

 

Should I stop paying my nominal amount as it is in the court process? or will this put me in a bad light me with the Judge?

 

[problem] have referred to my payment in the latest communication from them, as if it was an admission of guilt on my part.

[remus]

Hi all, couple of questions, doing WS, am I right in thinking if SCM letter has 'without prejudice' I am unable to use this as evidence?

 

Also as the WS has to be done simultaneous can I ring SCM as time is short!

 

thank you

 

also am I allowed to mention what went on in mediation? or is that also a no no as I have no proof. (think I'm answering my own questions!)

Edited November 23, 2010 by remus

[remus]

Hi all,

 

SCM have admitted on their WS that the DN does not contain the correct number of days to remedy the breach, but carry on to say the Final Demand was not sent for two months. They quote case law Amex v Ian Karl Robert Brandon 2010.

 

I have no Final Demand, there is nothing with the WS except enforcement notice, DN, loan agreement and statements. Do they not need to prove it?

 

SCM are asking for the Court to decide the claim based on the written evidence. I have noted that the Judge's are issuing Judgement on the fact you owe the money end of, but I have never denied this, the POC stated I had not paid, and I always have, even if it was a nominal amount as worked out with the CAB.

 

Anyone any thoughts on what I need to do next?

 

help!

[citizenB]

They quote case law Amex v Ian Karl Robert Brandon 2010.

 

 

 

I understand that the case above is subject to an appeal hearing .. soon...

[remus]

Are they able to use the above case if it is subject to appeal?

 

Why issue a DN if they are not going to act on it?

[gh2008]

Brandon is making an application to appeal.

 

However in Brandon there were enough days albeit the wording was wrong.

 

The DN gave "14 days from the date of service"

 

BUT because of the statutory wording that DN contains saying "14 days from teh date above", the date was taken to mean the date of issue (being the only date stated)

 

The DJ felt that although the wording became confusing that no prejudice was caused against Brandon because he never intended rectifying the default.

 

HOWEVER the 14 days from service was there not 11 days or 12 days

 

There are very important differences - but the creditors are jumping on it because of a quote being used out of context ...... as usual

 

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