Eversheds County Court Paperwork / **SUCCESS**

[surfaceagentx20]

DO NOT RETURN THE PAPERWORK.

 

What you have there is a county court summons. You should also have form of acknowledgemetn of service as part of a 'Response Pack'.

 

Do you have a copy of

[1] your agreement with MBNA?

[2] the default notice mentioned in the Particulars of claim?

[3] a notice from anyone saying the MBNA debt had been assigned to Arrow Global?

 

If you are missing any of these things I suspect the proper thing to do will be to deliver a letter to Eversheds requiring thme to comply with a request for the provision of those documents under CPR 31.14. I'll walk you through the sequence if it is appropriate.

 

Meantime, what is the amount of the claim against you?

 

x20

[surfaceagentx20]

Gooner,

 

Complete your acknowledgement of service form by answering all the questions and return it to the court indicating an intention to defend the entire claim. Then send Eversheds this letter:

 

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

 

Any questions, just yell.

 

x20

[surfaceagentx20]

Post copies of them to this site. We will want to see if they meet technical legal requirements.

 

x20

[surfaceagentx20]

Docman,

Yes, if this case was issued anywhere other than Norhampton Bulk, CPR PD 16 para 7.3 will apply.

 

x20

[surfaceagentx20]

If a legible full copy of the credit agreement came with the Claim Form, then Eversheds have complied. If it didn't then they haven't and the appropriate way forward would be to demand it under CPR 31.14.

 

CPR refers to the Civil Procedure Rules, the collection of rules governing civil procedures in courts in England and Wales. PD stands for 'Practice Direction'. Most CPR have PDs guiding the way a party should conduct themselves and so on. CPR 16 PD para 7.3 says:

 

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, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

You can find the CPR here, and CPR 16 PD 7.3 here.

 

x20

[surfaceagentx20]

Gooner,

I suppose the default notice came by post? What date does it say was the date you should comply with it by?

 

And if you've got a scanner it would be really handy to see the default notice after you've post-scan edited it to remove reference to your indentity etc.

 

x20

[surfaceagentx20]

We'll see what your DN looks like in a mo but you've already got your first headline defence sorted. Here's why:

 

The minimum period of time which may be allowed a debtor to comply with a default notice is 14 days after the date of service. If the DN was dated 19 December 2006 and posted to you that very day first class post, the deemed date of service would be 21 December 2006. If the date for compliance was 2 January 2007 only 12 days was allowed.

 

The failure to allow not less than 14 days after service constitutes a breach of section 88 of the Consumer Credit Act 1974. This section provides:

 

88. Contents and effect of default notice.

(1) The default notice must be in the prescribed form and specify

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

 

The things in section 87(1) and which are prohibited under section 88(2) are (a)-(e) below, as follows:

 

87. Need for default notice.

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

 

It follows that the termination occurring on 5 January was a termination not in accordance with section 87(1). Likewise the demand.

 

In short any sum of money claimed which exceeds what was truly the amount by which you were in arrear on the day the default notice was issued will now be irrecoverable. I hope that saves you a proper shed load of money.

 

x20

[surfaceagentx20]

Damn. So you were in arrear to the tune of £6K or so when the default notice arrived?

 

Leave things as they are right now, take a step back and review in 24 hours once you've posted a scan of the default notice and perhaps the agreement itself if you manage to find it. And any stuff you might have about the instalment agreement you had set up with Eversheds as well.

 

x20

[surfaceagentx20]

Gooner, you'd be crazy to admit to this claim. Listen,

 

Have a long careful read of the law I quoted in my post no22. See what section 87(1)(b) says? it refers to 'earlier payment', that is payment of money due ordinarily in the future but which under the contract might be accelerated into becoming payable earlier than it would otherwise have been payable if there was a breach of the contract by you. If the creditor wants to take advantage and claim immediately what would be payable in the future, he's got to comply with section 88.

 

Next, see what section 88(2) says up there in post no22? It says the date given in the notice for compliance 'must not be less than 14 days after the date of service of the default notice.'

 

The date of service is deemed to occur on the 2nd day after posting where first class post is used.

 

In this case MBNA didn't give you those 14 days. That means their claim is limited to anything which doesn't represent 'earlier payment'. That would be £887.30 or the true arrears whichever was the lesser.

 

so like I said, you'd be crazy to admit to this debt. Your maximum liability just tumbled from £6K odd to less than a grand.

 

x20

[surfaceagentx20]

Incredible 'en it? It's consumer protection in action; doing what it says on the tin.

 

OK, from now on we keep that card up our sleeve for a couple or so weeks. The DN is trashed so we see what else we can shave off this claim. That's where the CPR 31.14 letter comes in. In view of the fact you have corrected your information about the information about the DN, that CPR 31.14 letter might as well get launched. It would still be a good idea to post the DN though. There may be other shortcomings in it besides the ones I have mentioned.

 

Sweet dreams.

 

x20

[surfaceagentx20]

Gooner,

The document is too small. See if you can post it bigger so we can read it.

 

x20.

[surfaceagentx20]

Gooner,

I've seen the DN and do not believe I can rip any more off the claim owing to any further shortcomings in it. Even so, on the strength of the shortcoings so far we've got the liability down to around £400.00 or so I'd say. We'll have to see if there are any other grounds which emerge once the other side have disclosed the documents we have asked for.

 

Meantime, you should return your acknowledgement of service to the court indicating you intend to defend all of the claim.

 

x20

[surfaceagentx20]

I gather the court is at Bradford in which case I understand the acknowledgement will have to be returned through the post. As far as I'm aware it's only through MoneyClaim Online based at Northampton where certain stuff can be sent over the internet.

 

Certainly Bradford has an email filing facility as follows 'e-filing[at]bradford.countycourt.gsi.gov.uk', but whether they would let you use this for sending your acknowledgement I wouldn't like to say.

 

Call Bradford Customer Services on 01274 840274. Tell them you've just been talking to surface agent x20 and ask to speak to Commander Shore.

 

x20

[surfaceagentx20]

Yes Tinks, but when do they ever?

 

A request for production of documents under CPR 31.14 has gone off I believe and so we're sitting tight for the stuff to arrive.

 

x20

[surfaceagentx20]

Hi Gooner,

Sorry the mailbox is full and I've been tied up on 'proper' work.

 

How's the draft Defence below seem to you?

 

1 The Defendant admits entering into an agreement with MBNA and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which MBNA and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 No admissions are made as to the terms, conditions or other provisions of the sale agreement alleged to have been made between the Claimant and MBNA. Further, if by the sale agreement alleged the Claimant acquired a genuine commercial interest therein, notice was not given to the Defendant of the Claimant's acquisition thereof.

 

3 Without prejudice to the generality of the facts and matters set out at paragraphs 1 and 2 above, the Defendant admits the receipt of the default notice relied upon by the Claimant, namely a notice dated 19 December 2006. Save that the notice was served upon the Defendant on a date thereafter and that service was by post, the Defendant is now unable to recall on what precise date and by what precise means the notice was served upon him/her. The notice failed to specify a date being a date 14 days after service of the notice or any date after service by when the Defendant was required to comply with the notice. Alternatively, the date specified in the notice by when the Defendant was required to comply was before 2 January 2007 which was not a date which was 14 days after service of the notice.

 

4 Further to the matters set out at paragraph 3, the Defendant avers the Claimant terminated the agreement on or after 2 January 2007 and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

5 Further, incorporated within the sums demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

6 Further and in any event, by reason of the matters set out at paragraph 3 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

7 In the circumstances neither the Claimant’s default notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

8 The Claimant’s claim to be entitled to £6,xxx.xx or any other relief following termination of the agremeent is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

 

Dated:

 

x20

[surfaceagentx20]

That's about it. you admit entering into the agreement though you do not admit it is enforceable. You do not admit that Arrow acquired an interest in the agreement but without prejudice to such contentions, say that if they did, the DN is ineffective to give rise to the claim they now make owing to the failure to provide you with not less than 14 days following service to comply. And then there's some stuff thrown in about penalty and admin charges.

 

If you are happy with it, just sign and date and send it to the court. The court will send a copy to Eversheds.

 

x20

[surfaceagentx20]

Nope

 

x20

[surfaceagentx20]

If you print off and sign, you must head up the Defence with the title of the case like this:

 

IN THE (NAME) COUNTY COURT

Case No: (Case No)

BETWEEN:

(Claimant's Name)

Claimant

and

 

(goonerhenry)

Defendant

DEFENCE

x20

[surfaceagentx20]

No nothing else so long as you remember to include the cheque for £500.00.

 

x20

Edited October 17, 2008 by surfaceagentx20
before you ask .. only joking about the cheque

[surfaceagentx20]

Gooner,

The AQ will state a date by when it is to be filed. Identify that date and let me know the date given. That's the date to start thinking about it, not now. Then add seven days to the date to file it. The date plus the seven is the date to file it, not the date the court say.

 

I take it we still have no answer to the CPR 31.14 letter?

 

x20

[surfaceagentx20]

Gooner,

The 7 November is the date the court require the parties to provide their AQs and strictly speaking that is the date by when the AQs should be returned. However, the likelihood of your opponent returning the AQ on or before 7 November is remote in my opinion. Invariably in cases of this kind, the CAGger completes the AQ, sends it off to court and to the other side and then finds himself in a state of limbo because the other side have not filed their own AQ at court. They have a habit of leaving things until after the last day.

 

Where such a situation arises, there will come a time in the space of a week or so when the court issues an order directing the other side to file their AQ and pay the AQ fee or face having the claim struck out (See CPR 3.7). The court normally give 7 days for compliance. If the other side never intended to comply then they will ignore the order and the claim will be struck out. If they wish to comply they will do so with the benefit of the information provided in the CAGger’s AQ.

 

I’m simply proposing to play them at their own game. I’m also proposing that your AQ is not sent to the other side because as sure as eggs are eggs, they won’t send you theirs.

 

In the meantime though I suggest you send them this letter.

 

Dear Sir,

 

I am in receipt of the court’s allocation questionnaire due for return on 7 November.

 

For the purpose of CPR PD 26A we should consult on the matter of case management directions and in this regard I look forward to hearing from you with your proposals for the future management of this case. I should add at this stage that my preliminary objective will be to obtain the very early disclosure of the documents mentioned in your client’s Particulars of Claim and requested in my letter to you dated (date). So far my request has been ignored without any explanation and unless you comply with that request by return it is highly likely that my questionnaire seek an appropriate order under CPR 31.14.

 

I look forward to hearing from you by return of post.

 

y/f

 

x20

[surfaceagentx20]

Gooner,

Just sit tightly clenched for the moment. I propose to review the position on Friday.

 

x20

[surfaceagentx20]

You move nowhere and stay put tightly clenched. I'll post a draft AQ to this thread during the next 24 hours.

 

x20

[surfaceagentx20]

Gooner,

Attached is a part-completed AQ in Form N150. You will need to download your own copy from here.

 

Complete the form you download in the way I have completed the attached N150. You will need to state the name of the court, claim number and your proper name in the form heading.

 

At Section D you will need to state the actual amount in issue. That sum will be the total sum claimed in the Particulars of Claim.

 

At Section E find out whether there are any dates you would like the court to avoid for a final hearing any time during say the first 8 months of 2009. If there are any, write those dates down in this section. and just follow what I have written in that section.

 

Sign and date the AQ on page 5 and fill out your address etc.

 

Attach to the AQ

[1] a copy of your CPR 31.14 letter and

[2] a sheet of paper on which you copy and paste the following as your proposed directions:

 

Proposed Directions

 

1 The Claimant shall by (date / time) comply with the Defendant’s request made (date) pursuant to CPR 31.14 by supplying to the Defendant true copies of each of the documents mentioned in the Particulars of Claim, namely

(a) the agreement relied upon

(b) the default notice and

© the notice of assignment

 

2 If the Claimant shall fail to comply with paragraph 1 of this order, the Particulars of Claim shall be struck out and the Defendant shall be at liberty without further order of this court to apply for judgment upon his Defence and for the costs of this case to be paid to him by the Claimant to be subject to detailed assessment proceedings pursuant to the provisions of the Litigants in Person (Costs and Expenses) Act 1975 if not agreed.

 

3 If the Claimant shall comply with this order, the case shall be stayed for a period of one month from the date of compliance.

 

4 [such further directions as necessary to manage the period of stay to include in the event that a settlement is not reached, directions for the case to be allocated to track and other desirable case management directions]

 

Signed:

 

Dated:

 

Any queries, just yell.

n150.pdf

[surfaceagentx20]

Gooner,

Scan up their AQ before you send yours off. It won't matter a jot if yours arrives in court the middle of next week.

 

x20