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Court papers received- what now??!!**WON**CASE DISMISSED

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Thanks X20. So what happens now?? Do they correct their POC and submit it again? Do I wait till that arrives then, as it will mention a CCA again, write again to them requesting the CCA they are relying on? As no CCA will be sent to me, or at least not a genuine one, will my defence be no CCA no debt?

 

Thanks in advance

Canaan

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Don't bother repeating your request for production of the agremeent. You only need to ask once.

 

To 'correct', ie 'amend' the other side need the permission of the court or your consent to amend. Have they asked you for permission? If they have I would refuse. Here's why:

 

As I understood the position it is that you have requested and are still waiting to be shown a copy of the agreement. If this is so, evidently the other side are having difficulty in locating it. That's fine and long may it be so. It means they can't amend because in amending they will need to identify the agreement and comply with CPR PD 16 by attaching a copy of it to the Amended Particulars of Claim!

 

An extension of time for the service of a defence can not be agreed between the parties for any longer than 28 days. An extension to 23 October is a 14 day extension (if as you said earlier, it was due by 9 October).

 

If by 23 October they still have not found it and obtained the court's permission to amend the Particulars of Claim, enter the Defence I drafted earlier. I described that Defence as 'flimsy' in the belief that it wouldn't survive an amendment of the Particulars of Claim. As things stand at the moment an amendment is not on the cards. It is the survival of the Particulars of Claim which looks in jeopardy!

 

x20

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Don't bother repeating your request for production of the agremeent. You only need to ask once.

 

Ok thanks

 

To 'correct', ie 'amend' the other side need the permission of the court or your consent to amend. Have they asked you for permission? If they have I would refuse. Here's why:

 

As I understood the position it is that you have requested and are still waiting to be shown a copy of the agreement.

 

Yes this is true here is the letter they sent requesting that I agree to an amendment via a consent order http://i366.photobucket.com/albums/oo110/Canaan1970/scan0003.jpg

 

If this is so, evidently the other side are having difficulty in locating it. That's fine and long may it be so. It means they can't amend because in amending they will need to identify the agreement and comply with CPR PD 16 by attaching a copy of it to the Amended Particulars of Claim!

 

Okaaaaaaay? They never attached a copy of the agreement to the first POC:confused: Why would an amended one be different? You mentioned in an earlier post that a request to amend should not normally be refused, I am curious as to why now it is different? I have written to them as you directed giving them till the 4th of october to produce a draft POC for me to look at they waited till yesteray to write to say they agree to give ME an extention to get my defence in. I am confused and wonder what effect me refusing to allow them to amend would have?

An extension of time for the service of a defence can not be agreed between the parties for any longer than 28 days. An extension to 23 October is a 14 day extension (if as you said earlier, it was due by 9 October).

 

If by 23 October they still have not found it and obtained the court's permission to amend the Particulars of Claim, enter the Defence I drafted earlier. I described that Defence as 'flimsy' in the belief that it wouldn't survive an amendment of the Particulars of Claim. As things stand at the moment an amendment is not on the cards. It is the survival of the Particulars of Claim which looks in jeopardy!

So do I understand correctly, by refusing permission I am forcing them to apply to the court for permission to amend the POC? And they would have to produce the CCA to the court at this point? Which they don't have..... Sorry for all the questions but I asm really trying to understand all of this and make sure that I am going forward with at least a basic knowledge of what I am doing :D

 

x20

Thanks

Canaan

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If I understand that letter correctly, they are asking for you to agree to the amendments of the POC , presumably this means that they wont need to ask the court ?, in exchange they will give the extension of time for you to submit a defence.

 

Ummm, one for x20 methinks :)


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If I understand that letter correctly, they are asking for you to agree to the amendments of the POC , presumably this means that they wont need to ask the court ?, in exchange they will give the extension of time for you to submit a defence.

Ummm, one for x20 methinks :)

 

Thanks citizenB.

I did'nt really think I needed extra time, my defence does not need to be in till the 9th of October :mad:.

So I assume I should send the letter they sent yesterday along with X20's post #75 which buys both sides extra time, then if they send an amended POC I look at it and decide if I agree with it or not??? and if they do not send one I submit the naff defence as per X20's post #48. Out of interest my letter to them said I would consider agreeing to an amended POC if they agreed to me being able to change my defence, they make no mention of this is their letter?? Is this significant??

 

THANKS

 

Canaan

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About amending, What I said in your case, in reference to the letter you have linked to was:

 

Got your PM.

 

Reply saying:

Thank you for your letter in which you invite my consent to an amendment of your Particulars of Claim. I may be willing to consent to an amendment without requiring you to make a formal application conditional upon a like facility to amend my defence being extended to me.

 

To enable me to consider your proposal please provide me with a copy of your proposed draft amendment and confirm you consent to my having the facility to amend my defence.

 

y/f

 

They will consent to you amending. This way you get the facility to amend you were talking about earlier without having to go through the hoops of an application and a court fee. If you do not like the look for their proposed amendment you can always refuse permission, though in the majority of cases permission should not be refused.

 

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.'

 

So far, they haven't responded with the proposed draft amendment, and the reason for this I am sure, is that they can't find the agreement. If they sought to amend without providing a copy of the agreement that would be a breach of CPR PD 16 and they would be unlikely in those circumstances to expect you to consent. After all, the letter asking for production expressly referred to CPR PD 16, and yes I know the first Particulars of Claim came without a copy of the agreement which is why the request for producion of the agreement was dressed up the way it was. Equally and if they did chance an ask of you, you would be within your rights to refuse to consent for the precise same reason.

 

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.

 

x20

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HAK,

You have to make an application to the court in form N244 for an order compelling the otherside to comply, with sanctions if they do not.

 

x20

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Cheers X20

 

One more thing is there a fee for this

 

HAK

 

 

Yes unless you are entitled to fee exemption

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Yes unless you are entitled to fee exemption

 

I am assuming then it will be £75.00

 

Can you get this back?

 

HAK

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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

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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 :-D

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

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


Live Life-Debt Free

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

 

Am I :confused:

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......

Edited by Canaan

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deleted

court.pdf

Edited by Canaan
Repeating myself

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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 :grin: what a pack of numpties.

 

Canaan

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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

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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 :D

 

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

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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.


Live Life-Debt Free

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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

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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

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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

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