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Canaan

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

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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

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Thanks X20

Damn does that mean I have to retract my numpty comment :D

 

 

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


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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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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

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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 :D 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

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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

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

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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:)

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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

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The waiting is horrible isnt it?:D


Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy -

HERE

2: Take back control of your finances -

Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors?

Read Here

4: Staying Calm About Debt

Read Here

5: Forum rules - These have been updated -

Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

 

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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The waiting is horrible isnt it?:D

 

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

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Is it a N149 or N150?


Live Life-Debt Free

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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:)

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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.

  • Haha 1

Live Life-Debt Free

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Thanks B3rty.

I have read it a few times and just need to check that it is 100% relevant to my situation. I am being sued for a loan which I never had with the bank (a POC error on the solicitors part). They will of course not be able to come up with a credit agreement for a loan as there never was one but do you think there should be mention of this?? I am not sure this will get to court as the solicitors will not want to stand infront of a judge and say they made a mistake and there was never a loan, they will no doubt stop this case and start again with the right paperwork, or then again they may decide that they will not be able to produce a CCA for anything else they try to sue me for so will just go away:D

I can live in hope

Canaan

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irrevelant post

Edited by Canaan

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The court will not strike out the case of one party unilaterally for such things as failing to comply with a PD. Neither in an ordinary case will it make an order for specific disclosure of documents after the close of pleadings and immediately prior to directing standard disclosure. Less so will it attach 'unless' conditions.

 

If after disclosure the Defendant wishes to amend the Defence because of something revealed in the disclosure, the Defendant can reach an agreement with the Claimant about amending or make an application for permission to amend.

 

I've seen this draft set of directions floating around in a number of threads. It is dangerous and I believe pt has now amended the original. It's dangerous because as a rle of general application the Defendant ought not to suggest a form of order which compels him to amend his pleading which is dependant upon an event to occur in the future, particularly so within a limited period of time where he has no idea whether 14 days will be sufficient, worse where the Defendant suggests his own case be struck out should he fail to comply within that limited period of time.

 

Specifically on canaan's thread, the Claimant has intimated a wish to amend the Claim. There is therefore no need to seek permission to amend the Defence if the Claimant is going to amend the claim. If the Claimant doesn't amend canaan is home and dry on the basis an agreement of the kind pleaded was not made.

 

I would not propose any directions in this case. It will get allocated to the small claims track and standard small claims track directions will be made.

 

x20

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No directions save for basic small claims directions???

 

Hmm,not my way of working but ...........

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... you were going to say something?

nope not at all, only that standard SCT directions are not sufficient for disclosure in this matter IMHO

 

but you are clearly knowledgable in legal matters so i bow to your judgment:)

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Soooooooo what do I send with the Allocation questionaire if anything??

 

Thanks

Canaan

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Hi Canaan

 

A copy of anything relevent that you have made reference to in your AQ ie CPR request,CCA request etc

 

Andy


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Hi Canaan

A copy of anything relevent that you have made reference to in your AQ ie CPR request,CCA request etc

Andy

 

I've not made any reference to anything in my AQ as I've not started filling it in yet so could do with some guidance..here is what is planned for the form so far

 

A: Mediation = NO

B: Location = NO

C: Track = YES

D: Witnesses = 0

E: Experts = NO

F: Hearing dates etc

G: Other information :???: sticking point, watching comments with interest.

H: Fee = NO I am assuming I don't have to pay anything:???::???: if so can someone let me know :D

I: Signature = Can manage this bit on my own :roll:

 

Thanks in advance

Canaan:)

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I've not made any reference to anything in my AQ as I've not started filling it in yet so could do with some guidance..here is what is planned for the form so far

 

A: Mediation = NO

B: Location = NO

C: Track = YES

D: Witnesses = 0

E: Experts = NO

F: Hearing dates etc

G: Other information :???: sticking point, watching comments with interest.

H: Fee = NO I am assuming I don't have to pay anything:???::???: if so can someone let me know :D

I: Signature = Can manage this bit on my own :roll:Dont sign the Sols Copy

 

Thanks in advance

Canaan:)

 

 

With reference to G I understand surface Agent is assisting but this is where you make reference to your dispute/Claimants behaviour/failure to furnish requested etc.

 

SCT N149 is very restricted re disclosures/directions and very much reliant on SCT direction from the Court.

 

 

I trust the above is of help

 

Regards

 

Andy:cool:

  • Haha 1

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

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On Part G and the draft directions, first pt and andy, thanks for flagging up the shortcomings in standard directions on the SCT. I hadn't appreciated they'd gotten so narrow. Standard disclosure is no more on the SCT and instead we have a requirement for simply the disclosure of those documents to be relied upon rather than any wider requirement to include disclosure of documents which have an adverse affect on the disclosing party's case. What's more instead of disclosing early on, the modern approach is to direct disclosure as late as just 14 days from the final hearing.

 

So with the benefit of your flags, I withdraw the suggestion that canaan should seek nothing in particular. In fact, as I look deeper into the thread, I see I was suggesting to B3rty that at the AQ stage canaan would be applying for a special direction.

 

I see the AQs aren't due in until 27 October. I suggest canaan resists the temptation to file something early and wait until the last moment so that, if something does come in from the other side, like an application to amend or a copy of an agreement the other side intend to rely upon, she can react to it in her AQ. The Judge will not make directions until the time for filing AQs has gone.

 

If nothing should come in between now and 27 October that wouuld suggest once more that the Claimant is in difficulties in locating the agreement it wishes to rely upon. That being the case, special directions should be centred upon demanding the prompt disclosure by the Claimant of the agreement they can't find, the better to bring the central issue and the Claimant's difficulties to a head.

 

x20

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Ok so I will go away for a while and try to translate X20's last post into Canaan english :D and then come back a few days before the AQ is due for further advice.

Many thanks all

Canaan:)

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