Welcome Finance and dodgy AOE

[legalpickle]

You will have to ask the court the reasons that the AoE was granted and upon what evidence asking for a copy of the file.

 

You should be able to make an Application to cease the AoE on the basis that proper procedures were not followed.

 

Send the Subject Access Request to Welcome by special delivery, not recorded delivery, as that's not guaranteed.

 

Also, I suggest you visit www.saynotoyes.co.uk that deals with matters about Welcome and it's related companies.

[legalpickle]

Well last week I wrote to the Courts. Thsi is what I sent...

 

Dear Sir / Madam

 

I am the defendant in the above case. I have not received any correspondence relating to the case until receiving the N60 AOE Notice.

 

There are a number of significant issues that need attention, most notably the amount claimed and that I was never served with the original papers nor given the opportunity to present my defence. There are also failings by the claimant from the outset involving the repossession and sale of the car to which the finance relates, all of which appear to violate my rights as a consumer under the Consumer Credit Act.

 

I have sought legal advice and I wish to make to the courts an application for redetermination in the first instance, as the amount ordered under the N60 is not sustainable in my current financial situation. Also it is my wish that this be kept out of my employer’s hands as I feel it is going to have an adverse effect on my role at work.

 

I also wish to make an application to have this judgement set aside, and would appreciate your guidance on what steps I need to take to arrange a hearing to do this.

 

Finally I request a copy of all documents and letters or other information relating to this case.

 

 

Yours sincerely

If you have a claim number - which will begin with '7' if it was issued last year or '8' if issued this year followed by two letters and several numbers - you can make an Application to Set Aside Judgment. There is no need for court advice on this and they are seriously limited in the advice they can give.

 

If the AoE was given on the basis of something else, i.e. not a County Court Judgment - and I don't know how this is possible - then you would need that information from the court.

 

If I was in your position I would have posted that letter here before sending it, as this would be how I would have amended it for you;

Dear Sirs,

 

Re: [claim no.]

I am the defendant in the above case. I had not received

any

correspondence relating to the above matter till I received the N60 - Attachment to Earnings Order.

 

It is my intention to make an Application to Set Aside Judgment & the N60, but in order to know exactly what the basis for this claim is, I require copies of all documents in the court file. I would appreciate if you could oblige by sending this to me at my correct address which is: ... as a matter of urgency, so that I can terminate this blatant injustice.

Yours Sincerely,

The court staff cannot do anything without a Judge's stamp, more than sending you copies of documents. It is therefore not necessary to give them more information than is needed for them to fulfill your request.

 

How did you send the letter? If you did not send it by special delivery and have not received a response to the letter, I would recommend going to Her Majesty's Courts Service - Home and finding the relevant court's details and sending it by fax. By the way, all letters to courts should be addressed to The Court Manager. For example, if this were addressed to Manchester County Court, you would address the letter to;

The Court Manager,

Manchester County Court,

Manchester Civil Justice Centre,

1 Bridge Street West,

Manchester,

M60 9DJ

 

Then call them and make sure that they have received it. At the top of the letter in a larger font, mark it as 'URGENT'.

 

 

oh and I also checked my file with equifax and yes you guessed it - nada. Not a mention. The same as experian. I also had a phone conversation with the courts and they told me 2 addresses the "solicitors" had been using thru this whole process. One of them is most def not one of mine.

If you have a CCJ then it would show up in your credit record.

 

Has the court sent you all the information. That's what you need. You then need to post it all up here, minus confidential information so that we can try to help you.

 

So hopefully they have served the papers at an address which I have never lived, that will certainly help my case. Just gotta wait for the info to come thru on paper.... Im so impatient tho....

Did the court say they are sending a copy of the file? In how long did they say you should expect it?

----------------------------------------------------------------------

To prepare for advice I suggest you take a few steps that will help me - and others - help you make an Application that will work.

 

1. Download PrimoPDF. This allows you to "print" complete documents to PDF format which is especially useful with court forms that can be filled in on your computer but not saved, so this way you can "save" them. Go to Free PDF Creator - Convert to PDF from Any File You Can Print - PrimoPDF - it's free.

 

2. Do you have a scanner? If not do you have access to a fax? If you have access to a fax but not a scanner, then search for 'jfax' or 'free fax to email' in Google and sign up for one of the free services. They also have commercial services so I can't link to them from the forum. In using a free fax-to-email service you can send documents to your e-mail which would give you a PDF or image file of the important documents.

 

In order to draft the best possible relevant Application for you, we are going to need to see all documents - minus personal information - so that we know what has actually happened. There may be other "defences" that we can think of that will help your case, which is necessary. Whilst you have a "defence" to get the Judgment cancelled, because no papers were served on you, that won't help when it comes down to a retrial of the case, so we need to work on that as well.

 

Please keep us posted.

 

Good Luck.

[legalpickle]

got letter from court this morning. The District Judge has set a date for re-determination of the Attachment order. 23rd Dec. Happy Christmas or what!

 

I assume this is just to re consider the amount I am ordered to pay each week. Any ideas?

Could be a Happy Christmas, could be a sad one! Hope for the former.

 

If you never received any claim form or anything, then plead your case. I recommend that you write down clearly all your arguments and explain why it shouldn't be granted. If need be write them here and I'll try to proof them for you so that you are clear on what you need to say to the District Judge.

 

If you never received a claim form or any Notice of Judgment and therefore don't have the particulars, then the Judgment should be set aside [hence the Attachment of Earnings as well] and you should be sent the claim form and supporting evidence for you to file a defence.

 

The re-determination should be, first, whether it was valid, and second, if it was valid, the amount that is reasonable.

[legalpickle]

Thanks so much Legalpickle

No problemo.

 

Let me just explain, these arguments are for you only. You are not necessarily going to present them to the Judge. What you need is to go in the court with a clear head, and have rehearsed and understand your arguments.

 

It is impossible to predict how the case will go, so I cannot say which arguments you will need to state or not. I sometimes have the problem that I forget something important in a hearing, so I make sure I have everything written down in the days before the hearing, and update it if necessary. That way if my brain stops functioning , as long as my eyes and mouth still work, I'm not screwed.

 

BUT, we also want to word it in such a way that if necessary - and this sometimes happens - you can present it to the Judge, and the other party if necessary. Sometimes it is worth saying to the Judge something like "Sir, Prior to this hearing I prepared the relevant arguments that I felt necessary to voice. With due respect, I think it may assist if Your Honour read through these arguments to assist this Court in making it's decision. For this purpose, Sir, I have prepared a copy of my arguments for Your Honour and the other party. I would be much obliged if I could provide you with this, Sir."

 

You have to make the judgment on the best way to approach it at the start. It always depends on the way the Judge commences the hearing and the behaviour of the other party [note if the other party is not present then you will obviously have to change the wording of your statements to the Judge, when you talk].

 

I have below written my proposed changes, and in square brackets notes on those changes.

 

arguments are as follows...

 

1.When I got into arrears on the hp, I spoke to Welcome to see what they could do to help my circumstances. Their only answer was to give me a 2nd loan to run along side the HP to pay off the arrears. Illegal i know, I only wish I had it in writing! I think i gave up at this point.

1. When I entered into arrears on the Hire Purchase Agreement due to financial difficulties, I spoke to the finance company - Welcome Finance - to see if they could assist me in my difficult situation. The only answer of Welcome Finance was to provide me with a second loan to run alongside the Hire Purchase Agreement. I feel that this was negligent and possibly unlawful.

 

[Please advise what's illegal? Alleging something like that in court without evidence could cause you trouble. Alleging something like that here could cause allegations of defamation. In court you will have to be more moderate than that.]

 

2. Car was repossessed, no paperwork, nothing. Still waiting for S.A.R - (Subject Access Request) to be actioned to see what is on file.

2. On , the vehicle was repossessed by Welcome Finance. Those that repossessed the vehicle provided me with no paperwork whatsoever. The only way I know it was them was due to their ID.

 

3. On I sent a written Subject Access Request, otherwise known as a Data Protection Disclosure Demand to Welcome Finance, so that I could find out all information relating to me that is on their files. As of today I have yet to receive the response.

 

[1) Please fill in the dates. If more than 40 days have passed, then I will modify it.

2) Also, please confirm whether you sent it by special or recorded delivery and date that it was confirmed by Royal Mail that they received it.

3) Also whether you sent a cheque or postal order to pay for it, and if a cheque on what date it cleared your account.

4) Was this before the proceedings were allegedly issued?]

 

3. No settlement figure was ever agreed, or was I ever informed of the value of sale of the car (or proof). The only proof I have is that about a month after repo, I got a speedng ticket relating to the car and had to inform police that it was in the possesion of welcome at tat time. This must be on record somewhere.

4. No settlement figure was ever agreed between myself & Welcome Finance. Neither was I ever informed of the sale price of the vehicle, or provided with any evidence of the sale price.

 

[1) How is the speeding ticket proof of anything? What do you mean by "The only proof I have is that about a month after repo, I got a speedng ticket relating to the car and had to inform police that it was in the possesion of welcome at tat time." Do you have proof of the speeding ticket and that it was transferred to Welcome to give to somebody else?

2) How should this help in your opinion?]

 

4. No communication whilst at the original address, until I moved 8 months later. I never gave them the new address as after this amount of time as with no communicaton I guessed the matter was closed.

5. I received absolutely no communication from Welcome Finance whilst I was residing at the address I originally dealt with them from. I moved from this address 8 months later. I did not give them my new address, as I logically assumed that after 8 months since the repossession, with no communication whatsoever, the matter was closed.

 

5. I did get some forwarded mail the following year offering me a loan. Responsible lending!! This was the only letter I ever had from Welcome in over 3 years. I kept this!!

6. Interestingly enough, the year after I moved from the original address I dealt with Welcome Finance from, I received a forwarded letter from Welcome Finance offering me a loan! This was the only correspondence I received from Welcome in over 3 years. I still have this and have brought a copy to the Court today.

 

[Again, don't get angry in Court. It doesn't work in your favour. Ranting on the forums is fine - providing it isn't potentially libelous, but in Court, you must hold a clear head and not get annoyed, however frustrating all this is. Also bring a copy of that letter to the Court - if it has a date on it, if not then advise here, as won't be relevant, as isn't proof of when it was sent.]

 

6. From speaking to the courts I know that proceedings were started in April 08 and that they first issued claim to original address on the aggreement. Obviously not there anymore. However I distinctly remember putting on the aggreement my work address and contact number. I have been in the same job for 12 years so it should have been easy to contact me. Maybe (fingers crossed) they do not have a copy of the original Agreement.

7. From calling the Court Office, I have been made aware that the proceedings that resulted in the Attachment of Earnings for which we are in this Court today, were issued in April 2008 and that the claim was allegedly sent to the original address where the agreement was with Welcome Finance. It is worth noting that I did write on the agreement with Welcome Finance the details of my place of work and contact number at work. I have been in the same job for the past 12 years, so it would have been easy for Welcome Finance to reach me.

 

[1) What do you mean "obviously not there anymore"? How is it obvious?

2) I'm not sure but it may be an offence to contact people at work for debt, it may be considered harrassment.]

 

7. I also know from the courts that papers were served to another address on August 08. An address that I have never lived at. MAybe there is someone with the same name at that address?? I am unappy that this kind of info is being sent out with such blatant disregard for data protection.

8. I have also been made aware from the Court Office that some papers were served at another address - an address I have never resided at or had any connection to - in August 2008. I consider this a material breach of the Data Protection Act.

 

[1) By saying "MAybe there is someone with the same name at that address??" you are going some way to defend them.

2) With all due respect, the Judge doesn't care whether or not you are happy! Court proceedings are intended to make a decision based on Law, not happiness or lack thereof!]

 

8. The courts tell me also that when i did not respond to the statement of means ( which i never recieved) that they sent the court bailiff to enforce this. Apparently this never came to anything as for some reason he did not make contact.

9. It has also been advised to me by the Court Office that when I did not respond to the Statement of Means - which I never received - they sent the Court Bailiff to enforce this. No contact or communication of any sort was made to me by the Court Bailiff.

 

9. when I finally recieve the first piece of communication on this case, The N60 Attachment of earnings order, it is set at an amount I cannot afford. I am told that the bailiff and statement of means were issued to my present address, why did I not receive any of these??

10. The first piece of communication that I received on this matter was a N60 - Order for Attachment of Earnings - set at an amount that I cannot afford. I was told by the Court Office that the Statement of Means & Bailiff were allegedly sent to my present address, but for some reason, I did not receive the Statement of Means or any communication from the Bailiff.

 

10. Being in line for promotion I would have very much liked to keep my employer out of this, something i know I am legally entitled to. How could the Judge making the final order accept that the bailiff could not make contact and just make the order anyway?

11. I am in line for a promotion in my job. Had I known about this matter when the claim was issued, I would have most certainly defended the claim. Were I to have lost, I would have made an arrangement that would most certainly have kept my employer out of this matter - a preference that I believe I should be entitled to.

 

[1) No. If you do not pay, you are not entitled to keep your employer out of it.

2) How was the Judge supposed to know that you had received nothing? Your logic here is flawed and would seriously annoy any member of the Judiciary. Under this "logic" no Attachment of Earnings could be made without contact being made with a Debtor, and no Bailiff can be trusted. Sorry mate, that won't stand up in ANY court!]

 

11. Finally I do not accept that i owe anything towards this debt. welcome acted so irresponsibly in the hanlding of the account that as far as Im concerned the aggreement was terminated when they took the car from private property without confirmation in writing.

12. In conclusion, I contend that the Claimant;

a) Did not serve the claim form on me at my correct address.

b) Has not provided evidence that I owe the debt they allege that I owe.

c) Delayed dealing with the issue for an unreasonable length of time.

d) Terminated the agreement by repossessing the vehicle from me.

 

I therefore respectfully request from the Court to;

a) Cease the Attachment of Earnings order immediately.

b) Order that the County Court Judgment against me be erased from the Register of Judgments held by Registry Trust Limited immediately.

c) Order that the costs the Claimant has incurred in trying to enforce the debt be the sole responsibility of the Claimant, due to their obvious abuse of procedural rules.

d) Order that the Claimant supply to me copies of the Hire Purchase Agreement entered into, evidence of the sale of the vehicle and the price it was sold and all other relevant documents as well as - if they intend to pursue this court claim - a Letter Before Legal Action detailing the reasons and the basis of their intended claim within 28 days OR Confirmation that they discontinue this Claim and that they agree that I have no liabilities to them within 28 days.

e) If the Claimant wishes to pursue their claim, order that the Claimant re-issue their Particulars of Claim - which I have not received - with all relevant information to my correct address more than 21 days after the supply of the documents detailed in (e) above, and no later than 28 days from that date.

f) If the claim is to proceed, then it will proceed pursuant to the usual court procedure [in accordance with the Civil Procedure Rules], allowing me 28 days from the date of receipt of the claim to file a defence [which will be the date I file an Acknowledgment of Service with the Court Office].

g) If the Claimant does not provide me with the documents detailed in (d) above the Claimant is refused the right to issue any similar claim against myself in the future relating to this matter and the matter will be deemed close.

 

After going through your draft, I do suggest that instead of talking you present our final version to the Judge, and we'll also include a Draft Order for this.

 

Please answer the points I have made and tell me if you have any additions or points that need clarifying, and then we'll try and get to the final draft.

 

Best of Luck,

legalpickle.

[legalpickle]

Thanks buddy, your help here is proving invaluable!! Let me digest this and I'll reply...

You'll only know whether it proves invaluable or not on 23rd December .

 

Disclaimer on my statements in my last post: I am playing devil's advocate. Sorry if anything offends you, that certainly is not the intention.

 

Awaiting your responses.

[legalpickle]

Sorry for the delay in responding.

 

I am not sure if the hearing on 23rd December will strictly be for the redetermination of the amount for the AoE, I have amended the below to take into consideration whether or not it is.

 

I would present this in a letter format to the Judge, and ask the Usher when you arrive for the hearing to give it to the Judge. Make sure to take 3 copies, and if the Claimant shows up, give them a copy.

 

So this is what I would write;

 

Dear Sir,

 

I thank you for scheduling this hearing today in order to correct what I view as an injustice that has taken place. It would be much appreciated if Your Honour would read my below arguments as with regards to this matter, before making any determinations.

 

1. When I entered into arrears on the Hire Purchase Agreement due to financial difficulties, I spoke to the finance company - Welcome Finance - to see if they could assist me in my difficult situation. The only answer of Welcome Finance was to provide me with a second loan to run alongside the Hire Purchase Agreement. I feel that this was negligent and possibly unlawful.

 

2. In September 2005, the vehicle was repossessed by Welcome Finance. Those who repossessed the vehicle provided me with no paperwork whatsoever. The only way I know it was them was due to their ID.

 

3. On 15th October 2008 I sent a written Subject Access Request, otherwise known as a Data Protection Disclosure Demand to Welcome Finance, so that I could find out all information relating to me that is on their files. This was confirmed received on 16th October 2008 and the cheque payment for the Subject Access Request cleared my account on 30th October 2008. As of today I have yet to receive the response.

 

4. No settlement figure was ever agreed between myself & Welcome Finance. Neither was I ever informed of the sale price of the vehicle, or provided with any evidence of the sale price.

 

5. I received absolutely no communication from Welcome Finance whilst I was residing at the address I originally dealt with them from. I moved from this address 8 months later. I did not give them my new address, as I logically assumed that after 8 months since the repossession, with no communication whatsoever, the matter was closed.

 

6. Interestingly enough, the year after I moved from the original address I dealt with Welcome Finance from, I received a forwarded letter from Welcome Finance offering me a loan dated March 2006! This was the only correspondence I received from Welcome in over 3 years. I still have this and have brought a copy to the Court today.

 

7. From calling the Court Office, I have been made aware that the proceedings that resulted in the Attachment of Earnings for which we are in this Court today, were issued in April 2008 and that the claim was allegedly sent to the original address where the agreement was with Welcome Finance. It is worth noting that I did write on the agreement with Welcome Finance the details of my place of work and contact number at work. I have been in the same job for the past 12 years, so it would have been easy for Welcome Finance to reach me.

 

8. I have also been made aware from the Court Office that some papers were served at another address - an address I have never resided at or had any connection to - in August 2008. I consider this a material breach of the Data Protection Act.

 

9. It has also been advised to me by the Court Office that when I did not respond to the Statement of Means - which I never received - they sent the Court Bailiff to enforce this. No contact or communication of any sort was made to me by the Court Bailiff.

 

10. The first piece of communication that I received on this matter was a N60 - Order for Attachment of Earnings - set at an amount that I cannot afford. I was told by the Court Office that the Statement of Means & Bailiff were allegedly sent to my present address, but for some reason, I did not receive the Statement of Means or any communication from the Bailiff.

 

11. I am in line for a promotion in my job. Had I known about this matter when the claim was issued, I would have most certainly defended the claim. Were I to have lost, I would have made an arrangement that would most certainly have kept my employer out of this matter - a preference that I believe I should be entitled to, in the first instance.

 

12. In conclusion, I contend that the Claimant;

a) Did not serve the claim form on me at my correct address.

b) Has not provided evidence that I owe the debt they allege that I owe.

c) Delayed dealing with the issue for an unreasonable length of time.

d) Terminated the agreement by repossessing the vehicle from me.

 

I therefore respectfully request from the Court to;

a) Cease the Attachment of Earnings order immediately.

b) Order that the County Court Judgment against me be erased from the Register of Judgments held by Registry Trust Limited immediately.

c) Order that the costs the Claimant has incurred in trying to enforce the debt be the sole responsibility of the Claimant, due to their obvious abuse of procedural rules.

d) Order that the Claimant supply to me copies of the Hire Purchase Agreement entered into, evidence of the sale of the vehicle and the price it was sold and all other relevant documents as well as - if they intend to pursue this court claim - a Letter Before Legal Action detailing the reasons and the basis of their intended claim within 28 days OR Confirmation that they discontinue this Claim and that they agree that I have no liabilities to them within 28 days.

e) If the Claimant wishes to pursue their claim, order that the Claimant re-issue their Particulars of Claim - which I have not received - with all relevant information to my correct address more than 21 days after the supply of the documents detailed in (e) above, and no later than 28 days from that date.

f) If the claim is to proceed, then it will proceed pursuant to the usual court procedure [in accordance with the Civil Procedure Rules], allowing me 28 days from the date of receipt of the claim to file a defence [which will be the date I file an Acknowledgment of Service with the Court Office].

g) If the Claimant does not provide me with the documents detailed in (d) above the Claimant is refused the right to issue any similar claim against myself in the future relating to this matter and the matter will be deemed close.

 

In the alternative, if this hearing is only to determine the amount that I am to pay via an Attachment of Earnings, I respectfully request of the court to cease the Attachment of Earnings - and remove the Defendant's costs of the Attachment of Earnings from the debt the Defendant alleges I owe them - to allow me to make an Application to Set Aside Judgment on the basis of my arguments, which I contend carry reasonable prospects of success.

 

Sincerely,

 

....

 

 

 

If you need any more help please don't hesitate to ask. I'm not going to be back here till Saturday night, but will do my best to respond as soon as possible after you post.

 

Please keep us posted whatever happens.

 

Best of Luck,

legalpickle.

[legalpickle]

Thank you for the time and effort you have put in here, it is most appreciated. Just out of interest, are you trained in Law?

No problemo. Always happy to help where I can.

 

Yes and No. I have experience.

 

On the last paragraph I assume you mean to write "claimant" rather than "defandant" x 2 ?

Yup. Sorry, my mistake.

[legalpickle]

Still no S.A.R - (Subject Access Request) returned from Welcome. 40 days is up on Monday. What would I do next if nothing comes by then?

In my opinion, leave it and mention it in the hearing.

[legalpickle]

Had court hearing on 23rd. Didn't go too well...

 

Submitted letter to Judge upon checking in at the court, he dismissed it straight away saying it had no relevance to the hearing which was to hear my objections to the AOE. I gave a detailed breakdown of my expenses, which showed I could not sustain the 50 quid a week payment, and he completely rejected it saying my expenses were too high!!!! He believed £135 per week onrent for a 2 bed property was "high" (how out of touch is this guy??? £550 a month is not high!!)

 

I need to make application to set aside which I intend to do next week. Any help on what to fill in on the N244 would be appreciated, although to honest I think i have it sussed.

 

Oh one final thing, I don't feel too happy that the Claimants Solicitors Agent took away my letter, as that means they have time to think of something to wriggle out of any argumements I may have at any future hearing. That said, still no return on the S.A.R.

 

Thanks for all help so far

 

N

Sorry to hear you were unlucky.

 

The judge was wrong. The letter was relevant, as if an AoE has been obtained on the basis of a Judgment that shouldn't have been obtained he should have at least frozen the AoE to allow you to make an Application to Set Aside Judgment without having the AoE hanging over your head. The letter showed that the Judgment is invalid.

 

As postggj says the battle isn't over. You should still make an Application to Set Aside Judgment on the N244. I don't have the time at the moment to prepare one for you but if you post what you want to write in each box in a post here, I'll happilly proof it for you. Hopefully you'll get a more thoughtful & sympathetic judge in that hearing.

 

how long till the 40 days are up

postggj: If you look in the OP's previous post you'll see the 40 days are up already.

[legalpickle]

with your agreement legalpickle

its time to get tough with welcome

I agree it's time to get tough with them, but why should the OP send them another letter? Hasn't he done what's necessary with the original SAR? I think he has.

 

Also, I'm of the thought that sending another letter is a waste of time, and instead the OP should make an Application to Set Aside Judgment and in the process of that Application ask that the court order the Claimant - i.e. Welcome - to serve all relevant documents on the Defendant - i.e. OP - within 7 days of the court hearing. Why bother with another letter?

 

send this and do what the letter states if they dont comply

 

LETTER BEFORE ACTION

Section 7 – Data Protection Act 1998

 

Dear Sir/Madam

 

Account: xxxxxxxx

 

You have failed to comply with my Data Protection Act Subject Access Request dated (Insert Date).

 

If you do not comply within the next 7 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.

 

 

Yours faithfully

 

 

 

 

 

[name]

[legalpickle]

the reason ime asking is even though i won with welcome, the judge said in his own words that i should have given them more rope to hang them selves

it looks better in court, seven days is not that long

 

i bow to your judgement on this as you have been helping from the start

It's a hard one. I would say that the Application should be made on 2nd January - if the OP can do it then - and if the OP wants to send the letter - it should be sent by special delivery tomorrow. The Application should include a demand for that information to be provided.

 

Due to the New Year and the chance that most staff in Compliance departments will be off, so they will have a skeleton staff in work the odds are that they won't fulfill the demand, if it is sent.

[legalpickle]

ok thanks for your input guys...

No problemo.

 

I am sending the N244 in tomorrow, and need a little help!

Will try to help. Good Luck.

 

point 3 on the form - I am obviously asking to make an order to set aside the judgement. Do I ask for the AOE to be suspended?

Yes. Fill in as follows;

 

a) To suspend the Attachment of Earnings in place against the Applicant till the conclusion of a review of the case.

 

b) To set aside the Judgment against the Applicant.

 

Point 4 - "Have you attached a draft of the order you are applying for" I presume I just leave this blank?

No. Select Yes, and I'll help you with a draft order at the end of this post.

 

Point 10 - I will attach my defence as was in the letter I took to court previously. I will just amend to make it suitable for purpose.

 

I will also submit a cover letter explaining why I have not made this application "promptly" ( as is the requirment ) stating that I have been waiting for a return on the S.A.R. in order to make my case. I will attach copies of the S.A.R. and ask that all requested information is forwarded to me.

Nope. Include the details in the cover letter inside the Application. Write it all in a separate document, and on page 2, tick the box 'the evidence set out in the box below'. In the box write 'Please see the attached document setting out the reasons for the Application.'

 

Then write everything in numbered paragraphs, including at the end the reasons for the delay in making the Application. Each section should have a header. Copy it all here - minus confidential information - for us to proof for you.

 

At the end of the attached document you also need a Statement of Truth [irrelevant of the fact that there are already two on the Application form - that both need filling in], which should stated as follows;

 

The Applicant [Defendant] believes that all the facts stated in this document are true:

 

Signed: ______________________ Date: 6th January 2009

 

 

 

You will need to send it with the £75 fee to the Court office.

 

On the plus side, I am taking a big hit with my wages at the end of this month and subsequently my pay will drop below the protected rate so there will be no more payments under the AOE order.

There's a good way to look at everything, I guess.

 

 

Now on to the draft order;

 

IN THE ... COUNTY COURT

 

CLAIM NO.: ....

 

BETWEEN:

 

WELCOME....

CLAIMANT / RESPONDENT

 

-AND-

 

RANDOMNICK

DEFENDANT / APPLICANT

 

---------------------------------------------------------------------

APPLICANT'S PROPOSED DRAFT ORDER

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Before DISTRICT JUDGE ...* sitting at ... County Court, ...., it is ordered that;

 

(* Leave the ... with the * blank and fill in the other gaps - also below).

 

1. The Attachment of Earnings against the Applicant is suspended with immediate effect.

 

2. The Judgment against the Applicant is Set Aside with immediate effect.

 

3. The Applicant is awarded costs in making this Application summarily assessed at £...:...* to be paid by the Respondent within 14 days.

 

4. It is noted that the Respondent has not abided by the rules of the Data Protection Act in not disclosing the information requested by the Applicant with a Subject Access Request. On this basis their claim is hereby dismissed and they are refused the right to reissue this claim.

[legalpickle]

Thanks for the help again. ok here is what I have...

I've amended it for you below, including your amendment in your last post.

 

 

Evidence in Support Of Defendant's Application for Claim No.: xxxxxx

 

 

1. When I entered into arrears on the Hire Purchase Agreement with the Claimant due to financial difficulties, I spoke to the finance company [Defendant / Respondent] - Welcome Finance - to see if they could assist me in my difficult situation. Initially they were very unaccommodating, insisting at times that if payment did not reach their Norwich office by close of business that day, they would visit my home to collect the vehicle to which the finance relates. Although I believed this to be outside of the provisions made under the agreement, I felt very intimidated and had to forgo priority payments to meet their demands, which only worsened my financial situation. Later on another answer of Respondent was to provide me with a second loan to run alongside the Hire Purchase Agreement to clear the arrears. I feel that this was negligent, irresponsible and possibly unlawful.

 

2. In September 2005, the vehicle was repossessed by the Respondent. Those who repossessed the vehicle provided me with no paperwork whatsoever. The only way I knew it was them was due to their ID.

 

3. On 15th October 2008 I sent a written Subject Access Request, otherwise known as a Data Protection Disclosure Demand to the Respondent, so that I could find out all information relating to me that is on their files. This was confirmed received on 16th October 2008 and the cheque payment for the Subject Access Request cleared my account on 30th October 2008. As of today I have yet to receive the response, despite the fact that the 40 day deadline passed on 25th November 2008.

 

4. No settlement figure was ever agreed between myself & the Respondent. Neither was I ever informed of the sale price of the vehicle, or provided with any evidence of the sale price.

 

5. I received absolutely no communication from the Respondent whilst I was residing at the address I originally dealt with them from. I moved from this address 8 months after the repossession. I did not give them my new address, as I logically assumed that after 8 months since the repossession, with no communication whatsoever, the matter was closed.

 

6. The year after I moved from the original address I dealt with Respondent from, I received a forwarded letter from Respondent offering me a loan dated March 2006. This was the only correspondence I received from Respondent in over 3 years. I still have this letter and attach a copy to this Application. I will bring the original to the Court hearing.

 

7. From calling the Court Office, prior to the hearing regarding the Attachment of Earnings, I found that the proceedings that resulted in that Attachment of Earnings were issued in April 2008 and that the claim was allegedly sent to the original address where the agreement was with the Respondent. It is worth noting that I did write on the agreement with the Respondent, the details of my place of work and contact number at work. I have been in the same job for the past 12 years, so it would have been easy for the Respondent to reach me to discuss the matter prior to issuing the claim, as is encouraged by the Courts.

 

8. I have also been made aware from the Court Office that some papers were served at another address - an address I have never resided at or had any connection to - in August 2008 - definitely a material breach of the Data Protection Act and negligent behaviour by the Respondent.

 

9. It has also been advised to me by the Court Office that when I did not respond to the Statement of Means - which I never received - they sent the Court Bailiff to enforce this. No contact or communication of any sort was made to me by the Court Bailiff.

 

10. The first piece of communication that I received on this matter was a N60 - Order for Attachment of Earnings - set at an amount that I could not afford. I was told by the Court Office that the Statement of Means & Bailiff were allegedly sent to my present address, but for some reason, I did not receive the Statement of Means or any communication from the Bailiff.

 

11. In conclusion, I contend that the Respondent:

 

a) Did not serve the claim form on me at my correct address and did not make sufficient effort to contact me prior to issuing the proceedings.

b) Has not provided evidence that I owe the debt they allege that I owe.

 

c) Delayed dealing with the issue for an unreasonable length of time.

d) Terminated the agreement by repossessing the vehicle from me.

 

I have waited in order to give the Respondent extra time to comply with the Subject Access Request, and to resolve this matter mitigating my losses. It has however become obvious that the Respondent has no intention to abide by the Law and comply with the Subject Access Request and provide me with the information I am entitled to. I have therefore been left with no choice but to make this Application.

Due to the Respondent's material breach of the Data Protection Act and the Civil Procedure Rules, I respectfully request from the Court to grant my Application in full awarding me costs of this Application and a full refund of the monies taken by an Attachment of Earnings plus Statutory Interest from the dates that they have been debited from my wages. Such a statement will be served and filed at least 48 hours prior to the hearing together with a Schedule of Costs.

 

Statement of Truth:

The Applicant [Defendant] believes that all the facts stated in this document are true:

 

Signed: ______________________ Date: 6th January 2009

 

 

 

 

 

THEN THE DRAFT ORDER....

 

 

 

IN THE NORWICH COUNTY COURT

 

CLAIM NO.: XXXXXXXXXX

BETWEEN:

 

WELCOME FINANCIAL LIMITED

CLAIMANT / RESPONDENT

-AND-

 

MR XXXXXXXX

DEFENDANT / APPLICANT

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APPLICANT'S PROPOSED DRAFT ORDER

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Before DISTRICT JUDGE ……………… sitting at Norwich County Court, Norwich Combined Court, The Law Courts, Bishopgate, Norwich.

 

It is ordered that;

 

1. The Attachment of Earnings against the Applicant is suspended with immediate effect.

 

2. The Judgment against the Applicant is Set Aside with immediate effect.

 

3. The Applicant is awarded costs in making this Application summarily assessed at £...:... to be paid by the Respondent within 14 days.

 

4. It is noted that the Respondent has not abided by the rules of the Data Protection Act in not disclosing the information requested by the Applicant with a Subject Access Request. On this basis their claim is hereby dismissed and they are refused the right to reissue this claim.

 

5. On the basis that the Respondent has failed to abide by its obligations under the Data Protection Act, the Applicant's claim for a refund of all amounts paid to the Respondent under the Attachment of Earnings shall succeed. The Respondent is ordered to pay the Applicant the sum of £...:... within 14 days which comprises of the sum £...:... paid to the Respondent through the Attachment of Earnings and the sum of £....:... in interest at the statutory rate of 8% per annum since the dates of payment to the Respondent.

 

WHAT ABOUT POINT 3? How much do i put in here. Just the amount paid under the AOE ??

In my post I put a * next to this deliberately. Leave this blank. Costs will start at the £75 for the Application and then costs for your time, for which you'll serve a costs schedule that we'll prepare.

 

This is irrelevant to what they've taken from the AoE. That is a separate issue. You leave this space blank for now, and the court will decide on the amount of costs you are entitled to.

 

Because of this point, I've added another point which is where your claiming the amounts paid under the AoE to date. You also need to amend the points in box 3 and add another point;

c) That the Respondent refund to the Applicant the sums paid in the Attachment of Earnings against the Applicant.

As with regards to point 5 that I have added in the draft order, don't fill in a sum there either. The sum will have to be the total plus 8% interest per annum from the dates of payment, that you'll have to work out prior to the hearing.

 

 

I had quite a bit of amending to do because all you did was copy and paste my statements for you for the AoE hearing, but this Application is not yet a hearing and there is a big difference between the two. Had you written the same exactly then it would not have made sense and you would likely fail in the Application. I suggest that in future you read through the whole set of statements before posting them here, to save us work, because that could put off somebody from spending so much time helping.

[legalpickle]

Thanks again. I take your comments on board and will try to be more helpful, but I'm sure you will appreciate that this is all new and slightly daunting too, so apologies if I am making it hard work at times.

I understand that, hence the help. I should explain however that people are not here to do ALL the work for you but to help and assist where possible. Proofreading and slight amendments are what should be expected, but in copying my original text, to anybody who would read it in your application it just wouldn't make sense.

 

Just a question about the 8% interest. Is this standard practice?

Yes. Statutory interest - 8% per annum - is what people claim on debts and money paid when making a court claim.

[legalpickle]

Got letter back from courts this morning, a hearing is set for 23 January. Here we go!!

 

Apart from the costs, is there anything else I need to do to prepare for this? I think everything is covered...

 

Just not sure what you can include when claiming costs. ??

 

Thanks

That was quick!

 

There are two things you need to prepare:

1. A spreadsheet with a breakdown of the amounts paid to Welcome to date, dates they were deducted from your wages, and 8% per annum interest till the date of the hearing.

 

2. Costs Schedule, which I will help you with - if you remind me - tomorrow evening.

[legalpickle]

Ok. Have you prepared the spreadsheet with the breakdown of the payments made to Welcome and 8% interest till the date of the scheduled hearing - 23rd January 2009?

 

If you don't know how to calculate the 8% statutory interest then you can search on this site - there is an interest calculator somewhere - or use the Excel version that I use which I have attached to this post.

 

Copy the cheque copy that you have received 2 times [once for the court and once for the Claimant/Respondent] and draft a cover sheet with the same header that I have put on the draft order in my post with your arguments for the Application. Instead of 'APPLICANT'S PROPOSED DRAFT ORDER', write 'APPLICANT'S ADDITIONAL DOCUMENTS FOR HEARING'.

 

Then write below that;

 

1. The Applicant attaches the following documents for the hearing of his Application on 23rd January 2009 at Norwich County Court. These documents have been served on the Respondent by Royal Mail Special Delivery at least 48 hours prior to the hearing due to the short notice provided of the hearing.

 

a) Copy of Applicant's cheque that was cashed by Respondent for the Subject Access Request that the Respondent did not comply with.

 

b) Breakdown of amounts that the Respondent has received from the Applicant by way of an Attachment of Earnings together with a breakdown of statutory interest on those amounts from the dates they were debited from the Applicant's wages.

 

c) The Applicant's Costs Schedule.

 

Statement of Truth:

 

The Applicant [Defendant] believes that all the facts stated in this document are true:

 

Signed: ______________________ Dated: 19th January 2009

 

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Now you will have a and b, we need to do c. Pursuant to CPR 48.6(4)(b) subject to CPR PD 43-48, Section 52.4 the cost that a Litigant in Person may claim is £9.25 per hour.

 

What you need to do is prepare another document with the same header as for the draft order and for the cover sheet with 'APPLICANT'S COSTS SCHEDULE' written in the header line.

 

Below that you should write;

 

The Applicant [Defendant] claims costs incurred in making this Application at the rate of £9.25 per hour pursuant to CPR 48.6(4)(b), subject to CPR PD 43-48, Section 52.4 and court costs that the Applicant has incurred in making this Application. The court fee incurred by the Applicant is £75.

 

Now you need to make a table with 3 columns. 1st column should have just the item number, in consecutive order, i.e. 1, 2, 3, 4, 5,... 2nd column should be longer as this will be the description. 3rd column will have the amount claimed.

 

The numbers in the first column centre in the box. In the second column write the date in the top left - first line, description of what you used the time for in the second line, third line should be aligned to the right and should say how many hours @ £9.25 per hour. The third column should be bottom centred with the total amount.

 

For example (second column, one row);

29th December 2009

Preparation of Application and supporting documents

2 hours @ £9.25 per hour

 

Don't exaggerate, round the time in 15 minute blocks, don't claim for when you spent 30 seconds calling somebody - if you have any like that, or 30 seconds reading a notification from CAG that you have new post from me, that would be exaggerated. Then provide a breakdown here, so I can evaluate it. If you don't know the date then you can estimate it, but make sure it's logical and they can't prove you wrong, for example if you can't remember whether Monday or Tuesday you logged on to deal with it, then write Tuesday unless on Tuesday you spent your whole day and night in meetings.

 

The last line should have no number in column 1, TOTAL right aligned in column 2, and the total amount bolded in column 3.

 

Copy and paste it here, and then we'll finish it.

MS EXCEL_Interest_Calculation_8%_V1.2.xls

[legalpickle]

I'm PMing a mod to approve both our attachments as I can't check it till then.

 

Assuming it's not exaggerated, that should be Ok. I'll look through it when it's approved.

[legalpickle]

Ok, now that our attachments have been approved, I've been able to go through your attachment. Rather than modifying it and posting another attachment and waiting for that to be approved, I'll explain here what should be changed and added.

 

1. The text 'CLAIM NO.: XXXXXX' should be closer to the text above it and should be on the right hand side of the page, preferably on the same line, but if you can't do that then on the next line.

 

2. The lines above and below 'APPLICANT'S COSTS SCHEDULE' should be full lines - like borders. In Word you can normally do that by pressing the '-' button on your keyboard about 10-20 times and pressing 'Enter'. If this doesn't work then go to Format, Borders and Shading and select the top and bottom parts of the image in the right hand box.

 

3. 'Making Application for Re-determination of Attachment of Earnings amount' is not true. You didn't make an Application as such. Rename it to 'Preparing request for re-determination of Application of Earnings amount.'

 

4. You can't claim for making the SAR to the Respondent. Remove that one.

 

5. Don't capitalize all first letters of the words. 'Attachment of Earnings', 'Application' and 'Set Aside Judgment' are the only words within a sentence that should be capitalized.

 

6. 4 should be: 'Attending (incl. travel) hearing for re-determination of amount of Attachment of Earnings.'

 

7. 5 should be: 'Preparation of Application to Set Aside Judgment.'

 

8. 6 should be: 'Preparation of additional documents for hearing of Application to Set Aside Judgment.'

 

9. 7 should be: 'Attending (incl. travel) hearing of Application to Set Aside Judgment'.

 

The line with the amount of hours, should not be bold and should be aligned to the right of each cell. Delete the spare line afterwards.

 

Remove the dash after each date and put the description on a second line.

 

Change the alignment of the text " The Applicant [Defendant] claims costs incurred in making this Application at the rate of £9.25 per hour pursuant to CPR 48.6(4)(b), subject to CPR PD 43-48, Section 52.4 and court costs that the Applicant has incurred in making this Application. The court fee incurred by the Applicant is £75." to 'Justified' which will make it look clearer.

 

You don't need so many spaces; delete some of the lines above and below that text, so there is only one line gap between the header and the text, and the text and the table.

 

Remove the last spare line below TOTAL. (Obviously amend the total due to point 4 of mine above).

 

Finally at the bottom of the sheet, add the following text [one line after the table];

 

Statement of Truth:

 

I believe that the facts stated in this Costs Schedule are true:

 

Signed: _________________ Dated: 20th January 2009

 

Mr. xxxxxxxxxxxxxxxx

 

 

 

I am not going to comment on the amount of time you have claimed, but I doubt the Judge would accept it. Firstly, did each item take up the whole hour, or did it take 15 minutes, or half an hour less? Secondly, it seems a bit exaggerated to claim 2 hours for these additional documents or 3 hours for seeking legal advice. You are unlikely to get those requests if you ask for so much time, I am talking from experience. There is no guarantee you will get costs but the more reasonable it looks to the Judge the more chances you have. I am playing devil's advocate here, no offence is meant.

 

Once all the documents are ready - my interest spreadsheet attachment has now been approved, so you can use that - prepare a cover letter to the court and the claimant with the following text:

 

Dear Sirs,

 

20th January 2009

 

Re: Welcome Financial Services Limited vs. Mr. xxxxxxx

Claim No.: XXXXXXXXXX

Application Hearing on 23rd January 2009 at xxxam/pm

 

I write further to the above matter.

 

Please find attached further documents, including the Applicant's Costs Schedule and a breakdown of amounts debited by the Respondent from the Applicant's wages in preparation for this hearing.

 

Sincerely,

 

 

Mr. XXXXXX

 

- Add another 2 paragraphs to the letter to the court as follows:

 

Please endeavour to make sure that these documents are on the court file in time for the hearing.

 

I can confirm that these documents have also been served on the Respondent by Royal Mail Special Delivery at least 48 hours prior to the hearing.

----------------------------------------------------------------------

Sign all documents. Print copies for yourself and sign those too. Take copies of everything to the hearing. Make sure that the Costs Schedule, Breakdown of amounts they've debited and everything else including special delivery receipts and cover letters is taken to the hearing, preferably in a folder with each document in another plastic.

 

Send the relevant documents tomorrow by special delivery (not recorded delivery) to the Court office and the Respondent.

 

Best of Luck!

 

Keep us posted.

[legalpickle]

Just had the hearing, got the same Judge as last time. He has dismissed the application, saying that there is not enough evidence to suggest I would have a successful defense in a claim, and more importantly to him, that it was not made promtly.

 

He made reference to the Data Protection Act and said that he was not in a position, or was his court, to make comment on that!!! What????????

 

In a word. Gutted.

I don't know what to say. You really got a pillock of a judge.

 

Maybe somebody more experienced than me will be able to help. I think you may need a Solicitor.

[legalpickle]

yeah I have just been on the phone trying to arrange one. I take it there is always a right to appeal in these cases?

 

Thanks for all your help so far, I had a bad feeling as soon as I saw the Judges name on the sheet in court.

There is never an automatic right to appeal!

 

You should have asked for a different judge from the clerk. In the big courts they are normally willing to change the judge's. I would have said to them that I want a different judge. I've done it before, as long as you do it before you even go in to the courtroom and ask the clerk.

 

Please keep us posted.