Nationwide taking court action

[creditcardmug]

Hi, I have posted the letter to the Nationwide yesterday by recorded delivery..so I guess I just have to wait now..

I am really worried about all of this, as I have the HFC taking me to court, and the nationwide maybe as well, with others I guess to follow....I heard on the radio about a company called carhoot i think or something like that, that will check out all fo your credit card agreements, is this worth a look at?

 

No dont go using agreement checking companies, we can do it on here for free.

Have you had a "Default Notice" from them yet?

 

Have a look at my thread here in the meantime

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/126560-nationwide-kpr-cca-request.html

[creditcardmug]

I see they have sent a default notice can you post that up?

 

BTW dont sign anything you send them just type your name

[creditcardmug]

Well it looks like they have issued a claim, when it arrives post up the Particulars of Claim, so that we can advise you further

[creditcardmug]

Hi again, well your in a good position here, their POC is rubbish.

 

1 they should have served the agreement with the claim, as they have filed in Swindon and not Northampton.

2 there is no reference to a default notice having been served.

 

So they are making mistakes from the outset.

 

What date is on the claim form?

[creditcardmug]

Are the prescribed terms on it, or does it say they are overleaf or something like that? is your signature on it?

[creditcardmug]

Ok, you need to send the Acknowledgement of Service back to the court by recorded, tick defend all of the claim. Make sure you do this straight away.

 

You the have 33days from the date on the claim form to file your defence, so i make thay 10th november.

 

Then you need to send a CPR request to NW, theres a couple of letters to choose from on here, ill see if i can find them.

[creditcardmug]

Here's one CPR letter which i have used, ill post the other one up next,

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION CPR18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

 

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[creditcardmug]

Here is the other CPR letter, this one tries to force them to comply with the CPR, as alot of them don't,

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment

 

3 the default notice

 

Your client should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

 

You will have to delete item 2 and edit it slightly.

[creditcardmug]

Theres 5 days from the date on the claim for postage then 14 days to file your AOS then another 14 days to file your defence giving a total of 33 days.

 

Give it a couple of days for the court to get your AOS then phone them to check what date you have to file the defence by, You will have to send it by post so aim to send it about 3 days before the due date.

 

I hear what your saying about not having had a DN, and they have just sent the app form, but you should still send the request because you need to know what they will/wont be relying on if you see what i mean.

 

To be honest they rarely comply with it anyway, but it shows the court you have been doing everything right, and they everything wrong.

[creditcardmug]

Just looked at the app form too small to read but i dont think the prescribed terms are there, if you can read it does it say something like the terms are overleaf?

[creditcardmug]

Well they wont get away with that, the prescribed terms must be "within the four corners of the agreement", they cannot be found elsewhere.

[creditcardmug]

Here is what they will be up against on that point,

 

. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

17. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

18. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

19. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

20. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

[creditcardmug]

No need to write to them, you get to point all this out and more in your defence

[creditcardmug]

Hi, what date is your defence due? have you read through the defence i used for NW ( link in one of my posts above), i think most if not all of it would be suitable to your defence, ask if your not sure about anything in it.

[creditcardmug]

Hi,just got back from working away and saw your post, ill go thro it tomorrow and get back, bump the tread tomorrow anyway.

 

Regards

[creditcardmug]

Hi again, yes keep the stuff re Default Notice in.

 

You need to send the attachments with it marked EX1/EX2 etc.

Send it to the court by Special Delivery, send an UNSIGNED copy to the claimant by normal post, with a covering letter to say that you have today filed the enclosed defence etc.( you can just type your name)

 

The "conditions booklet" is irrelevant

 

If they want to use that DN as evidence thats fine cos its flawed.

[creditcardmug]

Hi, heres a link for help with the AQ, let us know which questions you are struggling with.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

[creditcardmug]

Hi, here is a suitable set of directions,

 

Draft Order for Directions

 

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

 

1. A true copy of the executed credit agreement and any other document(s) referred to within the agreement.

 

2. True copies of any default notice and cancellation notice that you sent to defendant

together with a copy of any proof of postage that you hold.

 

3. A full breakdown as to how the amount claimed has been calculated, including all payments made and charges applied throughout the duration of the agreement.

.

4. Any other documents relied upon

 

5. The original documents to be brought to the court at the hearing

 

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
  

Edited November 22, 2008 by creditcardmug

[creditcardmug]

Here is the Other information,

 

Other Information

 

 

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.

It is essential that the Originals of these documents be brought to the court at the hearing

 

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 fast 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 these documents must be disclosed before this case can progress any further

 

You will need to get the fonts all the same

[creditcardmug]

What date must the AQ be filed by? can you hand deliver it?

Have you filled in the rest of the form yet?

Remember it will be Fast Track

[creditcardmug]

Hi again, the thing is you need to insist on the originals of the documents being brought to court at the hearing, at this stage they only have to provide copies of them, but they will have to be exact copies.

 

I have put a line in the directions/other info to reflect this (not sure if you should but hey the judge will see it anyway).

 

What you have received up to now is neither here nor there, what they provide from here on in must be legit (they cant change anything now),so we will know what were working with.

 

You said it yourself, what they have supplied is an application form, and a "sample" DN, this is not good enough, they must produce the original documents, and in the case of the DN, proof of service as well, otherwise their case cannot succeed.

 

I hope this allays your fears. anything else shout, but you need to get this part sorted out pretty soon.

[creditcardmug]

Hi again, sorry been busy the last few days, just looking over the suggestions above by SH (thanks for helping), i would only change a few things,

 

Section A for all

1 yes

2 yes

3 no

4 leave blank

 

Section B tick yes and write " already transferred to my local court"

 

Section C Tick no and write "Please see attached section C"

Then on a separate sheet of paper type this, and head it section C

 

This case is not covered by any approved pre-action protocol, i have requested the claimant provide information in my CPR request, but to date the claimant has not provided the documents i require to investigate this claim

 

Section E 2 hours

 

Section I

1 yes

2 yes

when- leave blank

applications no

in the big box write "Please see attached section I"

 

Everything else as in the above post

 

Now before you sign the form make 2 photocopies of it,(one for you, one for the claimant)

 

Print of two copies of the directions, other information,Section C

 

Sign only the original and send it to the court with the above attached

 

Send the other copies to the claimant, with covering letter to say you have today filed the enclosed at ? court.

 

Send it by SD on friday to the court, send the claimants copy by 2nd class

 

get back with any more questions, i should be about most of tomorrow.

[creditcardmug]

Excellent CCM. Many thanks for that.

 

I wonder if you know the answer to this one - Can this AQ be handed in to the court personally, or does it have to be sent by post?

 

I know today the OP didn't start work until 11am, so it may be possible to take it to the local court first thing in the morning.

 

SH

 

Yes thats the best way to do it, ive done it twice, the last time i asked for a receipt, and she wrote it out on one of the courts compliments slips, they are normally very helpful as well, if you have any questions on procedures or anything like that, but you have to ask they dont offer any info otherwise.

 

BTW they open at 10am, the quietest time is after 3pm

[creditcardmug]

Hi, the court will allow them another 2 weeks i think, however i don't think it will take them that long, they are obviously having trouble deciding on whether its worth continuing.

 

Thats a good defence, mostly written by pt, BTW, im not surprised they are having second thoughts after reading it, and by now of course they will have read your draft directions, so will be even more cautious.

 

So far its only been their inhouse legal dept you have been dealing with, i think faced with what you have thrown at them, they may be considering whether to bring in a barrister, and the costs of it all should they lose.

 

Thats my opinion of it so far anyway.

 

So just sit back and wait, theres nothing to worry about.

[creditcardmug]

No don't send them a copy, they wont bother sending you a copy of theirs!