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

[Canaan]

Thanks Andyorch.

At what point would the other side normally pull out of proceedings? The reason I ask this is that there was honestly never a personal loan between myself and the OC, the DCA made an error on the POC paperwork. I assume the other side are not going to submit an AQ and pay costs for a case they will loose???

[AndyOrch]

Hi Canaan

 

Well if the penny has not dropped yet for the Claimant let him proceed with his AQ as you say they will have a fee to pay.They are going to look rather silly if they proceed perhaps you should write the Claimants Sols inviting them to issue a Notice of Discontinuence.

 

Regards

 

Andy

[Canaan]

Would love to

 

The penny dropped for the claimant weeks ago, they know the POC is incorrect, they requested extra time a few weeks ago but I continued with submitting the defence as the extra time would not have benefited me at all.

Canaan

 

I would be grateful for some help with the wording a letter inviting the solicitors to issue a Notice of Discontinuence when someone has a spare moment

 

Canaan

 

Well the other sides solicitors sent their allocation questionaire today, with very interesting notes in section G, completely ignoring any alleged debt but just concentrating on the fact that they offered to give me more time to file my defence and i carried on regardless. I did write to them and they were given adequate time to amend their POC they waited until the last minute to write and tell me that they were giving ME more time which i wrote back and said i didnt need therefore i was going ahead with sending in my defence. Basically they are trying to make me look obstructive. Every one of their letters has been headed "without prejudice" am i right in thinking that this prevents me presenting them to the court as proof of what they actually offered and their replies to my letters?

 

Thanks in advance

Canaan

[surfaceagentx20]

Canaan,

Further to your PM, the Claimant may have stated in its AQ a wish to amend the Particulars of Claim, but that is not sufficient. The Claimant will be obliged to make an application to the court and on notice to you for permission to amend and in a proper case, submit a draft of it's proposed amendment. On considering the application the court will probably allow it though with provision for you to serve a consequential amended Defence.

 

In the circumstances it is probably premature to write inviting the other side to discontinue. The effect would most likely be to spur them into making the application. I'd sit tight on this one for the moment.

 

Oh, and they can't rely on their 'without prejudice' letters either.

 

x20

[Canaan]

This is the exact wording of their section G: red bits are mine:D

In a letter dated 24/09/08 the claimant invited the defndant to consent to the claimants proposed application to he court to make 2 minor amendments to the particulars of claim (i.e to correct a spelling error i the defendants name and substitute the words "credit card" for "personal loan" ummmm surely this should be subsitute the words "personal loan" for "credit card" in reltion to the agreement) In exchange for such consent, the claimant would consent to a further 28 days for the defendant to file a defence. The defendant turned down this offer and responded with her own conditons which included a limiting date that precluded the making of the application by consent. Right they wrote to me asking me to consent to a change to the poc i wrote back saying i would consider this on condition that they allowed me to 1. extend the defence date, 2. send me a copy of the cca and 3. that they would return the daft new poc by the 4h of october. They write to me on the 3rd of october to offer ME more time at which stage i wrote back saying i was wating no longer and was putting in my defence.

The claimant has supplied the following documentation of the claimant which we attach for the courts reference:

1. Copy of deed

2. copy of extract

3. statements of account

 

No CCA though

 

surfaceagentx20 said:

Canaan,

Further to your PM, the Claimant may have stated in its AQ a wish to amend the Particulars of Claim, but that is not sufficient. The Claimant will be obliged to make an application to the court and on notice to you for permission to amend and in a proper case, submit a draft of it's proposed amendment. On considering the application the court will probably allow it though with provision for you to serve a consequential amended Defence.

 

In the circumstances it is probably premature to write inviting the other side to discontinue. The effect would most likely be to spur them into making the application. I'd sit tight on this one for the moment.

 

Oh, and they can't rely on their 'without prejudice' letters either.

 

x20

 

Thanks 20 much appreciated

[Canaan]

Hello everyone, finally I have heard back from the judge. As per advice received I ticked the mediation box on the AQ. I have now received a letter from asking me to ring a number and discuss the mediation. So, now what? Any advice gratefully received on how to proceed, I need to ring within the next few days

Many thanks

Canaan

 

The letter above was also a notice that the case had been referred to the small claims track.

Many thanks

Canaan

track allocation.pdf

[citizenB]

Good news that the case is to be heard as small claims Canaan.

 

It might be a good idea to pm X20 or andyorch to advise on the mediation side of things.

 

I guess you will certainly need to have an idea of what outcome you want and how much you are prepared to compromise, etc.

[surfaceagentx20]

Canaan,

you're not being asked to call that number. Rather you're directed by the judge to call the Court Mediator on that number or by email. I'd comply with the direction and then come back and let us know what information you picked up.

 

x20

[Canaan]

I have rung the number but there was no one available so have left a message, hopefully they will ring me back before the end of the day.

 

Canaan

[Canaan]

OK I have had an email from the court asking if i want to mediate in the matter. How should I respond to this????

I have also been sent a letter from the solicitor reminding me that their client does not want to mediate, also enclosed in an application form accompanied by another sheet with t & c different size etc the usual thing I see mentioned on here all the time. I will post them up later when i have scanned them.

Canaan

[citizenB]

Hmm, it is a moot point really, if the claimant doesnt want to mediate can the court order it if you were to say yes ?

[Canaan]

According to the letter if one or the other does not agree to mediation then the judge will make a date for the court appearance.

 

Canaan

[surfaceagentx20]

The Claimant's unwillingness to mediate kills the prospect of mediation stone dead. I'd scan the letter you received from the Claimant in which they say we have no wish to mediate and attach it to your reply to the email you received from the court. Say in your message something like:

 

Thank you for your email.

 

I was willing to endeavour to mediate a settlement to this case but as you will see from the letter I have received from the Claimant dated (date) a copy of which is attached to this message, the Claimant is refusing to mediate. I know of no good reason why the Claimant should refuse to mediate.

 

In the circumstances it seems to me there will be no useful purpose in pursuing mediation as a means of settlement any further and I thank you for your assistance to date.

 

After you've sent the email sit tight and await further directions from the court. They may be some time coming.

 

x20

[Canaan]

The solicitors are still waiting to hear back from their clients to confirm whether or not they are willing to mediate. What sort of things are discussed in mediation? If its things like me settling the debt, then it would be a pointless exercise as I would never be able to get the money required. If it is payment terms then they would be minimal and it would take years and years to pay it off!

This case is still based on a personal loan and not a credit card by the way......

Canaan

 

Attached is the letter and application form.

Canaan

application form.pdf

 

BUMP

Sorry guys but I have the mediation service ringing me wanting a reply now!!!

Thanks

Canaan

[surfaceagentx20]

Tell the mediation peeps what I suggested you tell them. Read them the letter you got from the creditor's solicitor. Ask them what feedback they are getting from the creditor's solicitor. Report what feedback you get here.

 

x20

[citizenB]

canaan, X20 posted a reply in post 160, previous page.. did you not see it ?

[Canaan]

Hi x20 and citizenB.

I have just got off the phone from the mediation service they are waiting to hear back from the solicitor who is asking their client if they want to mediate. as I said earlier I can't see the point myself as I will not be able to offer them anything they will find acceptable.

Canaan

 

I was wondering if anyone has any comments about the application form which they sent supposed to represent the CCA. From what I have read it does not meet the criteria as enforceable but would like some confirmation that I am right and if there are any steps i should take now regarding this.

Many thanks

Canaan

 

There have finally been some developments in this situation.

The other side obviously decided they didnt want to enter into mediation so a court date has now been set for January!

 

I really need a lot of advice on what happens from here on in.

 

1) They are taking me to court for a personal loan which I never had with the OC, they have never applied to have a new POC put forward :-?

2) They have sent me an application form saying it is the agreement and attached were a set of terms and conditions which are very obviously not part of the original application form just a photocopied sheet

 

So what do I do now? Fire off more letters pointing out that the application form is not sufficient and I want to see a proper CCA? or prepare for the case (in which case I will need a lot of advice ) As the holiday season is on the way I am in a bit of a panic to get some advice, my paperwork has to be in to the court 14 days before the case which makes it the end of december to get everything ready....please help!!!!

Many thanks in advance

Canaan

 

Just a little bump

 

Please

[surfaceagentx20]

Canaan,

The point is this: The Claimant is pursuing this claim on the basis that you and the bank entered into a loan agreement. At one time the bank recognised that the nature of the agremeent with you was mis-described, in truth was a credit card agreement and was anxious to amend the Particulars of Claim to properly reflect the naure of the agreement. As far as I am aware, permission to amend has not been granted and thus if the hearing takes place in January, the Claimant will enter into court with a claim based upon a loan agreement.

 

That said, apart from this not insignificant point, I understand I would be right in saying the claim appears to be one to which you would not otherwise have a defence. If there are other grounds of defence please bring me up to date.

 

It is possible the court may grant permission to amend at the January hearing in which event your better course would be to sek an adjournment of the hearing in order that you might then have an opportuinty to reassess your position and serve an Amended Defence.

 

x20

[Canaan]

Thanks for the reply x20

It is true that no permission has been given to amend the POC, the court would have written to me to inform me....wouldnt they?? If they have the ability to change the POC on the day would there be a risk of the judge not allowing me to have an adjournment??

I did post up the application form they eventually sent me in place of the CCA on an earlier post i think this will link to it http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=4729&d=1227267504 from what I have read I don't think this complies with the regs, but i'm not sure??

 

Thanks Canaan

[banker_rhymes_with]

Hello Canaan!

 

Just some observations on that alleged Agreement:

 

See: Consumer Credit Act (1974) and related Regulations

 

(1) Most of it is hard to read, some cannot be read. If so, then you could argue they are in default of your s78(1) Request because of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557):

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed

agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act without any alteration or addition, except that--

 

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed

by these Regulations; and

 

(b) every Form shall be completed in accordance with any footnote.

 

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced in addition to any such Form.

 

(4) Where any such footnote requires any words to be omitted, those

words shall be omitted or deleted.

 

If they are in default of your s78(1) Request, then it could be argued they are still constrained by s78(6).

 

(2) It has the wrong Heading if they want this Application Form to become a Credit Card Agreement. They've omitted the word Card. See Consumer Credit (Agreements) Regulations 1983 SI 1983/1553 Schedule 1:

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

 

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

 

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

 

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

 

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--

 

"Credit Agreement regulated by the Consumer Credit Act 1974".

 

(3) Where the document and a pawn-receipt are combined, the words ", and Pawn Receipt," shall be inserted in the heading after the word

"Agreement".

 

(4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate.

 

(5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the

heading.

(3) Both Pages are poor copies, and do not appear to be directly linked. If they cannot produce the Original, they should then struggle with CPR PD 16 7.3 and I'm sure x20's Thread below could help there:

 

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

I appreciate you may well see them off on the fact that they have started this Claim based around an incorrect Agreement type, but should they be allowed to alter their POC, then maybe some of the above could help you to plan how best to handle that.

 

Cheers,

BRW

[Canaan]

Thanks for the reply Banker.

I am plodding my way through the various links and trying to make sense of it all.

I need to ask about the paperwork i need to submit to the judge and the other side before the case. What exactly do i submit? Is it all the corrispondence i have received and sent so far along with my original defence? When I put together an additional defence in case the judge allows them to change their POC, do i send that to them too??

 

Sorry for all the questions but I can't find threads dealing in detail with this stage of proceedings.

Many thanks

Canaan

[banker_rhymes_with]

Hello Canaan!

 

I'll let Andyorch or x20 respond, as my Post above was just to help you to pick holes in the alleged Agreement.

 

They are the best ones to advise on the Court issues and how best to handle that.

 

Cheers,

BRW

[AndyOrch]

Hi Canaan

 

I will go through your thread later and respond when refreshed with your case.

 

 

Regards

 

Andy:)

[Canaan]

Thanks Andy....much appreciated:)

 

Another development today which I need urgent advice on. I received a copy of an application notice today sent to the court from the solicitors. The application is to ask for permission to change the POC, in part C they lay out why they want this change and the are saying that I refused to allow them to change the POC they are telling porkies as they were given adequate time to send me a draft POC for approval but they left it till the last minute to then tell me there wasnt enough time to do this and offered to give ME more time to prepare my defence!

Should I scan and upload this?? Is there anything I can do or anything I can send to the court i.e. the letters I sent to them which proves they are being dishonest in what they are saying in this application?

Canaan

 

The scanner at home has died a death so I will scan the form tomorow and post it up.

Canaan

 

Attached is the application for change of POC that arrived yesterday.

I really need some guidance on what documents I need to prepare and send to the court and the other side 14 days before the court date, and also how to handle this application for change of POC.

Many thanks

Canaan

change application.pdf

[pt2537]

i would suggest lodging a witness statement in opposition to the amendment to the pocs

 

this way you can put across your points that you did not agree to the amendments and you will get a chance to put that across at the hearing