The dreaded court claim came today...

[creditcardmug]

Really its 33 days from when the court forwards your defence to them, as they give 5 days for postage.

 

Bear in mind there's xmas,idiot solicitors,court backlog due to a mountain of claims going thro now,the possibility of SCM dragging their feet for any number of reasons, and now the weather affecting the post.

 

The bottom line is the court will stay it for a while, but not forever.

 

So give it another week then phone the court for an update as to the status.

[Decanus]

I spoke too soon!

 

have just got home, and waiting for me is the allocation questionnaire. Now, I will have to have a look through the questions and most seem ok, although I may need some advice on things like costs etc

 

I am keeping an eye on Nottsdave's thread, as he seems to be in a similar situation, but any advice welcome.

[Decanus]

Having cast a quick eye over the AQ, I need to make my first request. Although I am following Nottsdave's thread, my AQ is an N150, so slightly different.

 

on Question A (Settlement) although I am ticking yes, it does ask if I want a one month stay - I assume this is a no? is there anything I can gain from this?

 

in fact, the form is a little confusing in parts ..

 

what track do I consider most suitable? small claims, fast track, multi-track?

 

am I claiming costs?

 

filing of fees is just for the claimant I assume...

 

not as easy as I first thought....

[ScabHunter]

N150 is more complicated than N149.

 

I can't look at it tonight as I've got another case to work on, but I'll take a look in the morning.

 

SH

[Decanus]

Many thanks SH, its too late to really have a look myself. As you've been helping out from the start on this one, your insight is always appreciated.

 

I am conscious that this form needs to be completed correctly otherwise it can hamper your defence down the line, and I don't want to miss anything important out.

 

Look forward to your input tomorrow, and thanks again.

[Decanus]

Having done some reading on the forum, it seems everyone has very differing views on how to fill in the N150. I think I may take it in order and see how it goes...

 

A Settlement -

 

Although some people put NO for this, to stress the claimant has been obstructive, I am leaning toward saying YES, just to indicate my willingness to try and reach agreement, despite the actions of the claimant.

Would a one month stay be of use? should I ask for one? not sure about this...

 

B Location -

 

As this has now been allocated to my local court, I assume I say NO to having the case heard at a particular court....

 

C Pre Action Protocols -

 

hmmm, 'You are expected to comply with the pre-action protocol. Have you done so?'

are there any pre-action protocols in this case? Unsure about this

 

D Case Management -

 

what amount is in dispute? I assume I put down what is on the claimants form, do I include the fees and charges?

 

have you made any application in this claim? No, I'm guessing..

 

Witnesses? I assume I just name myself

 

Experts? No

 

Track? Would it be fast track? the amount is over £5000, so can't be small claims, and multi-track I'm not sure about

 

E Trial or Final Hearing?

Length of Hearing? I am guessing a default 4 hours? or some put 1 hour?

 

F Proposed Directions?

Have you attached a list of the directions you think appropiate? would this be where I enclose a draft order for directions? (may need help with the wording of that, I know its important to mention 'original' agreements)

 

G Costs?

I assume this is left blank

 

H Fee?

blank again, I guess...

 

I Other Information?

This is where I attach and mention courts power over enforcement etc, although help with wording would be appreciated.

 

Very basic at the moment, but any pointers, advice, corrections would be welcome.

[ScabHunter]

You are definitely on the right track with this, if you pardon the pun.

 

A - Settlement

 

I would answer this

 

Yes

Yes

No

Leave blank

 

If you say "yes" to question 1, it relieves you from having to answer question 4. You may as well show willing, even though the enemy won't. Question 3 needs to be answered "No", as there is a fee involved.

 

I would estimate the length of hearing at 2 hours, but it is not vital.

 

Parts C, F and I need more thought. I will be back later if I can spare a few minutes.

 

SH

[Decanus]

Thanks SH, I know you're a busy bee at the moment....

[Perdita]

subbing - i think we'll both be doing the same thing this weekend !!

[Decanus]

My N150 is also due back to the court on Feb 19th, so I'll try and sort it out by Monday and then send it off.

 

Perdita, apparently its a good thing to send a copy of the AQ and its attachments to the claimant, because it shows good conduct to the court, and shows SCM that you are not going to go quietly, and will fight your corner. If they see you have a grasp of legal matters, it raises the question of whether to pursue you further or not...

[ScabHunter]

This is what I would recommend for the answers to the "easy stuff", everything other than parts F and I -

 

A - Settlement

 

1 Yes (because it eliminates the need to answer question 4)

2 Yes (shows willing)

3 No (because it needs a fee)

4 Leave blank

 

B - Location Of Trial

 

No (already transferred)

 

C - Tick No and write "Please see attached section C"

 

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

 

"This case is not covered by any approved pre-action protocol. I have requested the claimant provide information in my CPR Part 31.14 and Part 18 requests, but to date the claimant has not provided the documents I require to investigate this claim"

 

D - Case management information

 

What amount of the claim is in dispute - fill in the full amount

 

Applications - No

 

Witnesses - Enter your own name, and "All" to 'witness to which facts'.

 

Experts - No to first question - leave the rest blank

 

Track - Fast Track (as claim is over £5,000) - Leave the other box blank as Fast Track is normal

 

E - Trial or Final Hearing

 

2 hours

 

(Only you know if there are any dates you cannot attend)

 

F - Proposed Directions

 

Yes to question 1, No to question 2.

 

I WILL WORK ON THE DIRECTIONS TO ATTACH LATER

 

G - Costs

 

Leave blank

 

H - Fee

 

Leave blank

 

I - Other Information

 

Yes to questions 1 and 2. Sent today. No to Applications and leave blank.

 

I WILL WORK ON THE ATTACHED OTHER INFORMATION LATER

 

There are one or two critical points we need to cover in Parts F and I, covering their non-compliance with the CPR and the need to produce the original agreement in court. I'm convinced they don't have it.

 

Make a copy of the AQ to send to [problem], before signing it!!

 

SH

[ScabHunter]

Here is what I would put on the other pieces of paper which will need to be attached to the AQ. As ever, any input from other posters is welcomed. I am not a trained lawyer.

 

For the Draft Order for directions -

 

In the ************* County Court

Claim number **********

 

 

 

 

 

Between

 

************* - Claimant

 

and

 

 

 

xxxxxxxxxx - Defendant

 

 

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order file and serve the following:

 

* Copies of the Credit Agreement and any documents referred to within it which complies with the Consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon. The original documents must be brought to the hearing.

 

* Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, which the claimant seeks to rely upon

 

* Copies of all statements for the duration of the alleged agreement, used to establish a balance on the alleged account

 

* Copies of any other document to be relied upon

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall, in response, file and serve the following

 

* An amended defence sufficiently particularised in response to the documents supplied by the claimant

 

For the Other Information

 

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

N150 Allocation Questionnaire

 

 

Section I - other information

 

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as non-production of the requested documentation will inhibit the courts ability to deal with the case

 

1. On xx/xx/xxxx I forwarded a request for information pursuant to the Civil Procedure Rules Part 31.14, for a copy of the agreement and the default notice mentioned in the Particulars of Claim. Despite the fact that Civil Procedure Rules Part 31.15 insists that the claimant furnishes these documents within seven days, my legitimate request was completely ignored.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

2. On xx/xx/xxxx I forwarded a request for information pursuant to the Civil Procedure Rules Part 18, inculding 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, and copies of statements for the entire duration of the alleged agreement.

 

These documents are necessary to establish the balance on the alleged account, to establish the percentage of the balance caused by unfair terms under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding on the defendant, and to establish whether or not the defendant is indeed indebted to the claimant to any degree. My legitimate request for this necessary information was ignored.

 

These documents are also necessary to determine the true balance on the alleged account at the time of default and termination. If the balance quoted on the default notice should be inaccurate to a degree greater than de minimis, either by the levying of unlawful charges deemed unfair under the Unfair Terms in Consumer Contracts Regulations 1999 or any other reason, then the default notice is rendered invalid as per Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255.

 

Its is respectfully requested this case be allocated to the fast track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further.

 

What is interesting here is that I would submit exactly the same AQ in both this case and the Perdita case, even though the cases are completely different and will need to be defended in a totally different way.

 

The unifying element is non-compliance with both CPR 31.14 and CPR 18. What we are trying to do here is force them to come up with the paperwork. What needs to be done with this paperwork will differ completely.

 

In this case, we have an unenforceable application form, which looks like a poor microfiche copy. The original may well have been destroyed, which is why we need to insist that an exact copy is produced now, and the original brought to the hearing.

 

The parts about the default notice are really just a back up in this case. In the very unlikely event of [problem] being able to pull a rabbit out of a hat and produce the agreement, we would need to demonstrate that there were enough unlawful charges on the alleged account to result in the default notice being inaccurate and invalid.

 

Hope this helps.

 

SH

 

 

[Decanus]

Jsut in from work SH so will have a good read a bit later, but thanks for putting in the time and effort, on this and Perdita's thread among others.

 

Will post after a nice cup of tea and something to eat....

[Decanus]

Right, have nearly finished filling out the N150, and personalising the excellent templates. There are just a couple of things I am still wondering about:-

 

SCM have been obstructive and unhelpful from the start, is there anywhere I can make this point, or would this be at court (if necessary)

 

If SCM bring the original CCA to court (I don't think they can, but if they did...), could I not make the point that I requested the original several times and they failed to produce it. Would the court not view this as particualrly obstructive?

 

Am I right in assuming that the entire case, regardless of the personal circumstances, stands or falls on production of the agreement? if no valid agreement appears, then no debt can be proven, and everything else falls by the wayside....where another lower-down-the-food-chain DCA will probably pick up the scrunched up paper ball...

[creditcardmug]

The judge will look at your draft directions, and theirs, and then make his own order.

You need to wait and see what is in that, if its basically along the same lines as yours, then whatever docs they file and serve now will be the only ones they can rely on at the hearing...so they wont be able to pitch up with some other document at the last minute.

[wilko1]

Good luck Decanus

 

I'm following your thread because I "may" be issued with court papers soon. If I am I'll start my own thread.

[Perdita]

Yoiu're ahead of me decanus, I havent started mine yet - it is on tonights and tomorrows agenda - I dont know what i would do without the help of people on here though. Lets hoep we both get the result we are wanting though i think yo have more chance than i do but we'll see....

 

P

[Decanus]

Right, movement already....

 

tonight I received a GENERAL FORM OF JUDGEMENT OR ORDER which states:-

 

Upon reading the Court file and of the Court's own initiative it is ordered that -

 

1. The claimant shall within three days of service of this Order file and serve:

 

a. a copy of the agreement;

 

b. a copy of the default notice

 

This order was made of the Court's own initiative pursuant to CPR PART 3.3(4).You may apply to set aside, vary or stay the Order but such application must be made within 7 days of receiving it.

 

although I am assuming this is a positive thing, telling the other side to furnish documents, should I be concerned that all that is asked for is a 'copy', not a 'true' copy or 'original'?

 

I made it clear with my Directions that I need to see the original agreement. Any ideas anyone?

[creditcardmug]

Any "copy" they produce now must be a copy of the original document they will be relying on at any hearing.

 

Interesting they have been given only 3 days!

 

Be ready to get on their case should they fail to comply with the honourable judges order

 

I rather think they will be hard pushed.

[Decanus]

I did think it was short notice too; could it be the legal system getting a bit weary of the amount of time taken up by banks and DCA's with poor paperwork....we can hope!

 

ccmug, thanks for the clarification on the document.

 

If the three days comes and goes, to whom would I complain? the other side, or the court? I cannot see them producing these docs in 3 days...(would that be three working days, or calendar days, you think?)

[creditcardmug]

I would say 3 working days, its a shame the judge didn't say the claim be struck out in default, or some such thing.

 

It says file and serve so you should receive the docs within 3 days as well as the court...if not give it 2 more days then write to the court complaining they have not complied with the judges order

[Decanus]

Just been going over the paperwork, or lack of it, and am curious to see what will happen next.

 

As I received the letter Friday, I will assume they did. Therefore 3 working days will expire on Wed (should it be FRI, MON, TUE, or MON, TUE, WED?)

 

Interested to see what they do....wonder if they expected this?

[ScabHunter]

I am watching this one eagerly. On the face of it the courts seem to be finally getting tough with timewasters who have brought cases to court without any paperwork to back them up.

 

It will be very interesting to see if that genuinely is the case.

 

SH

[underdog13]

Subbing with interest - best of luck to you, Decanus:)

[Decanus]

thanks guys,

 

I am hoping this IS a sign that the courts will no longer indulge the Banks and DCA's.

 

It would have been clear to the DJ that despite myself following all the rules and regulations to the letter, the DCA's choose not to respond to CPR requests, claim not to receive letters, file late without the documents they need etc.

 

This would be a positive development, as a lot of the people on here are also in similar situations. I think its also a good vindication of the defence template we have been using, with tinkering to our individual circumstances (thanks to SH for help with mine)

 

Fingers crossed, I'll update when I hear (or don't!) by Wed/ Thu