Some advice re: an interim charging order pls

[lookinforinfo]

Lisaf-did you go to Court when the original CCJ was applied? If not, then you may be able to get the CCJ set aside which would stop the Charging Order.

 

Did you send them a CCA request before the hearing-and if you did, did they send you a copy of the executed agreement. Did they also send you a Default Notice and was it correctly drawn up? If they do not have the original executed document or the Default Notice was wrong in some way, then the CCJ can be contested. And if successful, the Charging Order is dead too.

So it is worth demanding the documents now under CPR and if they do not provide them before the hearing, you can ask for an adjournment until you receive the papers.

 

Send this letter with thanks from either pt2537 or Curlyben

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

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.

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 XXXXXXXXXXX

c. 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.

d.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).

e. 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.

f. 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.

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

h. 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.

i. 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).

Edited December 2, 2008 by lookinforinfo

[lookinforinfo]

Whatever else you do, you must go to the Court on the day to argue your case.

I went some time ago with several points to argue my side of the case. Because i was present in Court, the Magistrates asked the Plaintiff a few searching questions to which the Court didn't like the answers.

The result was that the case was dismissed without me even saying a word.

Had I not gone there, the case would have been heard in my absence and rubberstamped.

 

Lisa when the Court papers were sent to you they would have included a section where you could apply to have the case heard in your nearest Court.

I suggest you speak to the Court on Monday to see if they will change the venue or adjourn it so that they can hear it nearer to you.

Don't be afraid to ring the Court-most of them are very helpful. Just quote the case number to them and they should help you.

[lookinforinfo]

Once an interim Charging Order has been granted it is very difficult to prevent the Final Charging Order going ahead unless you have applied for a setaside. This will cost money to do but if you win , you can reclaim the cost from the other side and if you are on certain benefits, the Court will not charge for the setaside-so ask the Court if you qualify.

To possibly get round paying for a setaside, write to the DCA advising them that as they are In breach of CPR and the CCA 1974, you will apply for a set aside which will incur them with extra charges if they cannot produce a valid CCA and Default Notice in Court.Tell them that unless they either agree to write to the Court dropping the Charging Order, or providing the required documents with 14 days, you will without further notice apply for the Set aside which will be heard alongside the Final Charging Order and that you will be attending Court on the day.

[lookinforinfo]

Muscat, i don't think Lisaf or any other following this thread and in the same boat are even thinking of giving up.

My concern is that if the Judge is unsympathetic, the Interim Order will become Final, almost rubberstamped, even if the defendant is present. So it is much better to prevent an Order becoming Final, than to try and get a Final Charging Order quashed which is why I said that the set aside would probably be the best way to argue against making the Order Final.

As such I am not really concerned what the creditor wants, but how best to stop them in their tracks. so by asking for a set aside, if they fail to provide either a valid executed agreement or Default Notice then the Charging Order will be thrown out and Lisaf can claim costs. If all their documentation is in order Lisaf still has the fall back arguments that it would be hamful/unfair

to the other half, children and the boss as well as other arguments mooted in earlier posts.

And yes. the set aside will usually be heard alongside the Final Order hearing

so you should know by the end of the hearing.

[lookinforinfo]

Sorry Lisa I have not been at my computer for a few days so thanks to Supasnooper for filling in.

 

You should point out that you have not been provided with the Default Notice and without a valid DN, they cannot apply for a Charging Order.

In case they do have both a valid DN and a valid Executed agreement, then you should also add that to apply a Charging Order is unfair on your other half, the boss and any other creditors.

 

When you fill out the Set aside, it will ask for the case number you are referring to, and from that the Court will marry your set aside with the Court case in March so that both will be heard at the same time. They will also send you a Court date of when the Set aside will be heard-if it is not at the same time as the Charging Order hearing, call the Court and they will amend it.

If you want to add evidence, you can include your request to the other side for information, stating that nothing ahs been received. You ncan also add statements from your other hal etc saying that it is unfair that they should be penalised for a debt that is not theirs etc.

[lookinforinfo]

I wouldn't worry too much about the Set aside being fully completed. You will have to fill in another from, your defence as it were, later in the proceedings, providing the other side have not yet backed out.

 

Rather than say you are applying for a stay in proceedings, you are actually applying for a Set aside because you did not have the opportunity to defend yourself and plead your case at the initial hearing because.....you didn't know it was happening or whatever. In law, you do have the right to answer the charge made against you and by adding that you have not been supplied with relevant documents under CPR it only enhances your chances of having the setaside granted-though it is almost guaranteed you will be allowed since you were not there at the initial hearing.

 

If you have already written to them advising them that you will take them to Court if they don't send the required papers, then go ahead and apply for the setaside. The reason I suggested you write first was to perhaps avoid having to pay the Court costs for the application.

 

Unfortunately, they either tend to think you are bluffing or leave it until they have taken legal counsel before realising they may be in a mess.

[lookinforinfo]

I expect they will work it out. They will not be expecting literary works of art.

The main thing is that you have put in the application.

[lookinforinfo]

Academic really Lisa. If they cannot produce the credit agreement at this hearing or the Final Charging Order it is game over for them.

What would be better is if they produced an invalid agreement so that they could never come back. The same would be true if they had an invalid default Notice-and that is very common. I will try and find an example on the forum of what they should say-virtually anything else renders the DN invalid-end of your problems.

I would go back to the ignoramuses at Cohens and ask them to provide now what they are going to produce in Court to give you time to prepare your defence ie the agreement the Default Notice and the Deed of Assignment. You are entitled to them under CPR and not to get them is a breach of CPR.

 

PS You and they will need to be quick if the hearing is for next week.

[lookinforinfo]

Lisa, I am sorry but I think I have mislead you on the previous post. All the Court are asking that the relevant documents are produced in Court so that you have them to hand when the Charging Order is heard.

So do not chase for them, indeed hope that they are not produced. By all means take along Von Greenbach's defence just in case, but I don't think you will be asked to do anything other than walk away with copies of the requested documents.

Once you have the copies post them on this thread to see if they are valid.

[lookinforinfo]

If they can't, the Judge will either quash the Charging Order, or give them a bit more time. Depends what kind of Judge you get.

You should point out to the Judge the letter from Cohen's saying they were not obliged to supply the docs and let him/her know how long you have been asking for them.

[lookinforinfo]

Howmuchdebt, first I don't think Von greenbach was rude to you-indeed he only said what you had already to Lisa which was "sorry to burst your bubble".

 

At the end of the day, on this forum we are trying to help people like Lisaf with her problem as this is her thread. So starting up arguments on someone else's thread is not much of a help to Lisaf.

 

That being said Howmuchdebt, I can understand that you would have been upset by the Judges decision in your case. Not all Judges are as au fait with the Consumer Credit Act as they need to be although in fairness even the Law Lords admit that the interpretation of parts of the Act are not easy for them either. However, if the executed agreement was not produced at the time the CCJ was applied then the Judges decision during the subsequent setaside appears to have been flawed. if you haven't started a thread on that result, I suggest you do so and see if it is not too late to have that decision reversed.

 

Lisa, I don't expect anything more to happen this week at your hearing other than the documents to be provided [or not as the case may be].

But in May, should it get that far, it would be wise to realise that you may need to dot the i's and cross the t's for the Judge to make it crystal clear that if there are defects in either the agreement or the Default Notice then the Charging Order and any associated CCJ are invalid and use examples which you can find on this Forum to substantiate your position.

[lookinforinfo]

I am sorry to hear of your bad news.

There is no need to leave the forum however. You appear to have a justifiable grievance against a decision made in Court and it would be a pity if there was a chance to get it rectified and not take it.

 

Obviously now is not the time to commence, but later when you have had a time to grieve, let us see if we can give you best advice to resolve that judgement.

[lookinforinfo]

Well, it costs nothing, other than time, to start up a thread on the subject. And to get the CCJ off your credit report and Eversheds off your back into the bargain would seem woth the effort.

And congratulations on your recent successes. To add a third to your list would surely be the icing on the cake.

[lookinforinfo]

Lisa they have only allocated 5 minutes, I think, for your hearing. But it is as well to be on the safe side and take your arguments along just in case things escalate, or you can find a reason why the case should be quashed now-like them not having the correct documents.

For instance if they only have an application form, point out that it is unenforceable in a Court, having the backup from other cases to substantiate your point so that it will be all over this week.

[lookinforinfo]

I am so pleased for you Lisa-well done. It is always a help when the Judge is sympathetic too.

I didn't want to build your hopes up before the case, but HC tend not to be too good at producing the relevant docs when required.

Not quite clear where you are at now-apart from being mightily relieved. Is the Charging Order now quashed? And what about the CCJ earlier-is that being removed too?

[lookinforinfo]

Lisa, you are probably best to wait until you receive the confirmation from Court that the CO has been quashed, and then send a copy of it to the Land Registry asking them to remove any data they have about the CO.

Cohen' should remove the CCJ but that does not mean they will. Might be an idea to write and give them 21 days say, to remove or you will be taking them to Court.

[lookinforinfo]

The AQ is sent to both parties to decide where and in whcih type of Court that the hearing should be held in.

You want int in the Small claims Court and the nearest one to you, so whatever costs you are claiming, keep them below £5000.

[lookinforinfo]

Once you know what you want, just fill out the form. The quicker you do it the better,as long as it is completed the way you want it.

Probably a good chance that Cohen will not provide the documents asked for.