TBI Claimform - old HFC Credit card Debt - **WON** - default notice fee but NO default produced

[tinkerbell20]

Cheers X20

 

One more thing is there a fee for this

 

HAK

 

 

Yes unless you are entitled to fee exemption

[Having_A_Knightmare]

Yes unless you are entitled to fee exemption

 

I am assuming then it will be £75.00

 

Can you get this back?

 

HAK

[surfaceagentx20]

You improve your chances if you follow this procedure:

 

First off, include an application for the costs in the application notice. Next, you will need to supply to the other side a statements of your costs of the application for summary assessment purposes not less than 24 hours before the hearing. Last you will have to succeed on your application.

 

If you get a tick against all three, chances are the Judge will make an order for the payment of costs, to include the court fee, based upon his examination of your statement of costs for summary assessment form.

 

Unless some other time for payment is mentioned, the costs will be payable within 14 days.

 

x20

[Canaan]

First, the letter in reply said 'I may be willing to consent to an amendment' (emphasis on 'may') and went on to say 'To enable me to consider your proposal please provide me with a copy of your proposed draft amendment.'

 

OK

 

I said: 'in the majority of cases permission should not be refused.', not all cases, and in a proper case permission may be refused. I would also add that it is advisable to be seen to be willing to consider an amendment aswell. That said however, in your case, no advance has been made in the drawing up of the amendment and no advance has been made in the production of the CCA to you. All this suggests as I said earlier, that the other side are in grave difficulties and it stems I would imagine, from the fact they've lost or destroyed the agreement.

 

If you refuse permission to amend, as you should if they can not produce the agreement, the only way forward for the other side will be to get the court to give them permission to amend. In my view the application would be at risk of being dismissed where they were unable to provide a copy of the agreement straight away. In any case, from the other side's point of view, what would be the point of an amendment if the amended case lead to another CPR 31.14 request? It's all a complete headache for them.

 

Yunno what, I misread the recent letter as their confirmation of your request for more time to serve a defence. In truth it's no such thing is it? It's just the other side seeking more time to find the agreement and get their house in order, right? Why give it to them? May as well file the 'not so flimsey defence after all' and get in now and not even wait until the 9 October. The court will then send out AQs to both sides and the clock will start ticking against them.

 

My brain hurts

Right I will get straight on with the defence as per your post and get it in the post first thing on Monday, now I guess this has to be sent along with the "Defence and Counterclaim" page that came with the court papers? Also do I write the defence as I would a letter with my address, date etc or just plain with the claim number in the corner?

In box 1 I assume I tick the "I dispute the full amount claimed as shown on the claim form"?

And in box 2 where it asks "Do you dispute this claim becuase you have already paid it? I assume I tick the "NO" box.

In box 3 the defence need to go but i assme that I leave that blank and attach the defence as a seperate piece of paper?

Box 4 is for a counterclaim which I assume I ignore?

Box 5 Is where I put my, up till now guarded with my life:-D, signature.

 

As for the solicitor, do I write to them and break the news that I am not going to apply for extra time?

 

x20

Many thanks X20:grin:

Canaan

[B3rty]

Surely you are asking for this to be struck out unless they produce the CCA and copy of the default notice?

[Canaan]

B3rty said:

Surely you are asking for this to be struck out unless they produce the CCA and copy of the default notice?

 

Am I

When I sent the CCA request all I got was copied statements from Sept 2001 to July 2002 a fraction of the total, a piece of paper which said extract of schedule on it, another piece of paper which said confirmation on it. Here they are...

http://i366.photobucket.com/albums/oo110/Canaan1970/sat27-2.jpg

http://i366.photobucket.com/albums/oo110/Canaan1970/sat27.jpg no CCA and they have avoided mentioning it in any of their letters. I can only attach one document at a time so the next post will have that attached which refers to a loan agreement, I have never had a loan from HFC. The defence was going to be based on the fact that the POC refers to a product that I have never had......

 

Here is the POC

court.pdf

 

deleted

court.pdf

 

I have just noticed something else wrong with this POC

On the top right hand side there is a box where the claim number should be entered, this is completely blank:confused: There is absoutley nothing on this piece of paper which mentions my name, there is no account number or any claim number. This POC could be for anyone what a pack of numpties.

 

Canaan

Edited January 6, 2009 by Canaan

[surfaceagentx20]

B3rty,

THe Claimant has made a booboo of their claim anyway. So the agreement which has been asked for isn't of the kind pleaded. Knowing this, the other side say they wish to amend their claim. But to amend they will need to produce the agreement because Canaaan will not consent to an amendment meaning they will need to go in front of a Judge to get permission to amend at which point, Canaan will say the other sdie haven't produced a draft amendment which complies with the rules because there isn;t a copy agreement attached.

 

The other side have already produced the DN.

 

If Canaan applies to strike out now because the CCA hasn't been supplied it will cost her £75.00 and it will be 6 weeks say before the application gets heard. On the other hand if the Defence goes in now the AQs will go straight out. This is not a case running out of Northampton Bulk. The other side will pay an AQ fee and Canaan can include her proposals for directions at that time. If AQs went out the middle of next week I'd say we could have a directions order in 6 weeks in any case, may be less.

 

Canaan,

the document you have produced with the PoC is page 2 of the Claim Form. Your name will be mentioned on page 1. The case number couldn't be put in the box when the PoC was typed up because at that time the Claimant didn't know what the case number was! The case only got a case number on issue, ie, after the stuff was typed up and sent into the court.

 

x20

[Canaan]

Canaan,

the document you have produced with the PoC is page 2 of the Claim Form. Your name will be mentioned on page 1. The case number couldn't be put in the box when the PoC was typed up because at that time the Claimant didn't know what the case number was! The case only got a case number on issue, ie, after the stuff was typed up and sent into the court.

x20

 

Thanks X20

Damn does that mean I have to retract my numpty comment

 

So I don't drive X20 to distraction I would be very grateful if anyone else who has experience with submitting defences could reply to my multiple questions in post #89:)

Thanks in advance

Canaan

[B3rty]

x20...i see where your are coming from .....I thought the AQ had been submitted without out this as there was talk of preparing a defence for the court hearing.....my error.

[Canaan]

Hi B3rty.

No we havent got to the court appearance defence yet, I am hoping to get in the written defence first thing tomorow. The DCA keeps abreast of developments in the case via this thread as I have found out so want to get it in before they can come up with some other delaying tactic:D

 

Thanks

Canaan

[surfaceagentx20]

Canaan, you do not need to use the form which came with the Claim Form. You can simply copy and paste the text on to your home word processor, get it neat and tidy, print off, sign and date, and send in to the court office.

 

I was also thinking about teeing things up for later with a couple of letters thus:

 

1 Letter to the court

 

Dear Sir

 

Re: (Claimant) v (Defendant) Case No

 

I am the Defendant in this case and enclose my signed Defence.

 

I also enclose a copy of a letter (dated) which I delivered to the Claimant's solicitor under CPR 31.14 asking for copies of documents mentioned in the Particulars of Claim. I regret to say the Claimant has still not provided me with a copy of the agreement even though one should have been provided as a matter of course from the outset under CPR PD 16.

 

The Claimant's solicitor has lately suggested that he would be willing to agree to my having more time to serve a Defence. I believe this suggestion stems from the fact that the Claimant is, for reasons which are not clear to me,

[a] in difficulty in producing a copy of the agreement and

intending, once the agreement has been located, to amend the claim to plead some differnet or alternative claim.

 

I attach a copy of my letter to the Claimant's solicitor [Letter 2 below]. Needless to say, I wish to see a true copy of the complete executed agreement as soon as possible and for the court's assistance in acquiring for me that which should have been provided from the outset, I should be most grateful. I should like to think therefore that an order directing the delivery of a true copy of the complete executed agreement could be made now. If that would not be possible I should like such an order to be made at the earliest possible moment.

 

In any event I look forward to receving an allocation questionnaire for completion in due course.

 

y/f

 

2 Letter to Claimant's Solicitor

 

Dear Sir,

 

Re:

 

Thank you for your letter dated (date).

 

With regard to your offer of an extension of time for the service of the Defence whilst your client continues with its search for the agreement, I have no need of further time.

 

I am astonished that your client has been unable to produce a true copy of the agreement. It is quite evident neither your client nor your firm have the original agreement to hand and that these proceedings began at a time when you were not in possession of it. Yet sight of it would have been a fundamental pre-requisite of pleading it in your client's Particulars of Claim and complying with your client's CPR PD 16 obligations. Are you able to provide me with a credible explanation for this oversight? If you are, no doubt you will let me know.

 

In any event I will not tolerate any further delay in the production of a true and complete copy of the agreement. I attach a copy of my letter to the court by which my Defence has been filed. If the court can assist me now I should welcome it. If assistance will have to await further directions so be it. You will see I have asked the court to deliver allocation questionnaires as soon as possible.

 

y/f

 

Any questions just yell.

 

x20

[pt2537]

Canaan, you do not need to use the form which came with the Claim Form. You can simply copy and paste the text on to your home word processor, get it neat and tidy, print off, sign and date, and send in to the court office.

 

I was also thinking about teeing things up for later with a couple of letters thus:

 

1 Letter to the court

 

Dear Sir

 

Re: (Claimant) v (Defendant) Case No

 

I am the Defendant in this case and enclose my signed Defence.

 

I also enclose a copy of a letter (dated) which I delivered to the Claimant's solicitor under CPR 31.14 asking for copies of documents mentioned in the Particulars of Claim. I regret to say the Claimant has still not provided me with a copy of the agreement even though one should have been provided as a matter of course from the outset under CPR PD 16.

 

The Claimant's solicitor has lately suggested that he would be willing to agree to my having more time to serve a Defence. I believe this suggestion stems from the fact that the Claimant is, for reasons which are not clear to me,

[a] in difficulty in producing a copy of the agreement and

intending, once the agreement has been located, to amend the claim to plead some differnet or alternative claim.

 

I attach a copy of my letter to the Claimant's solicitor [Letter 2 below]. Needless to say, I wish to see a true copy of the complete executed agreement as soon as possible and for the court's assistance in acquiring for me that which should have been provided from the outset, I should be most grateful. I should like to think therefore that an order directing the delivery of a true copy of the complete executed agreement could be made now. If that would not be possible I should like such an order to be made at the earliest possible moment.

 

In any event I look forward to receving an allocation questionnaire for completion in due course.

 

y/f

 

2 Letter to Claimant's Solicitor

 

Dear Sir,

 

Re:

 

Thank you for your letter dated (date).

 

With regard to your offer of an extension of time for the service of the Defence whilst your client continues with its search for the agreement, I have no need of further time.

 

I am astonished that your client has been unable to produce a true copy of the agreement. It is quite evident neither your client nor your firm have the original agreement to hand and that these proceedings began at a time when you were not in possession of it. Yet sight of it would have been a fundamental pre-requisite of pleading it in your client's Particulars of Claim and complying with your client's CPR PD 16 obligations. Are you able to provide me with a credible explanation for this oversight? If you are, no doubt you will let me know.

 

In any event I will not tolerate any further delay in the production of a true and complete copy of the agreement. I attach a copy of my letter to the court by which my Defence has been filed. If the court can assist me now I should welcome it. If assistance will have to await further directions so be it. You will see I have asked the court to deliver allocation questionnaires as soon as possible.

 

y/f

 

Any questions just yell.

 

x20

I have a question

 

did you use spell check:p

 

 

sorry but i couldn't resist

[surfaceagentx20]

pt,

so yet more smelling mistales detected. My stuff gets rattled out on MS Notepad. No spell check.

 

And er, you've no grammar check I notice.

 

x20

[citizenB]

Thanks X20

Damn does that mean I have to retract my numpty comment

 

 

Not at all, if there was an award for being a Numpty.. then I am sure these solicitors would possible qualify

[pt2537]

pt,

so yet more smelling mistales detected. My stuff gets rattled out on MS Notepad. No spell check.

 

And er, you've no grammar check I notice.

 

x20

nah, me and grammar dont go together im afraid

[Canaan]

OK all done and ready to post tomorow morning. I assume that I should send the defence by registered post? Thanks for all the help x20.

 

Now can I ask a favour of X20 and pt2537, could you both delete the contents of the letters in your posts Would have to ruin the surprise for the DCA and solicitor on Tuesday:p

When all this is over I will start a new thread with the whole thing step by step with all the relevant letters and advice inserted so that it can be of help to others in the same boat.

 

Many thanks

Canaan

[pt2537]

HI,

 

I have moderated the posts, as i do not agree that deleting them is the best way forward.

 

this forum operates by allowing others to view the advice given and to adjust it to suit their situations, so by deleting the post, we are depriving others of very valuable help

 

i will re approve the post on wednesday, so that the very very good advice given by x20 can be viewed by others;)

 

thats the best i can do im afraid

[Canaan]

Fair enough, at least the letters should get to the solicitor before the threads reappear here:)

[Canaan]

Well today the defence went off to the court and the letter went off to the solicitor. I will ring the court tomorow to make sure it got there and if not I will fax it to them. So now I guess I wait for the allocation questionaire? I will do some reading about them over the next week and let you all know if I get any response from the solicitor.

Many thanks

Canaan:)

[Canaan]

Just a quickie I rang the court yesterday to check my defence had arrived...it had and was logged... no letter from the solicitor as yet....now more waiting...dum de dum de dum:rolleyes:

 

A soon as I have a bit of spare dosh I will donate to the save the CAG fund!!!

 

Thanks

Canaan

[citizenB]

The waiting is horrible isnt it?

[Canaan]

The waiting is horrible isnt it?

 

Well I did'nt have to wait too long, the allocation questionaire arrived today, dated the day my defence went in:) The case has been transferred to a local court and I have till the 27th of October to return it. Tomorow I will go through the questions and put what I think should go in each up here to be checked if thats ok:D

 

Canaan

[B3rty]

Is it a N149 or N150?

[Canaan]

Is it a N149 or N150?

 

Hi B3rty.

It is a N149.

Along with it came N152 (notice that a defence has been filed) and N271 (notice of transfer of proceedings)

 

Thanks

Canaan:)

[B3rty]

Heres something I have used which may help you, I typed this up and put in section G see attached

 

N149 Allocation Questionnaire

 

 

 

Section G - other information

 

1. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

 

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

 

 

2. If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

 

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

 

 

 

 

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

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

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.