Nottsdave/Capquest-Court date soon.

ScabHunter · February 2, 2009

The basic part of the N149 is easy enough to fill in.

A – Yes (this shows willing, although it is a totally farcical situation, and obviously no form of resolution is possible)

B – No (As the claim has already been transferred to your local court)

C – Yes

D – 0

E – No

F – Only you can answer this, if there are any dates you could not attend court

Interpreter – No

G – see below

H – No (not payable by defendant)

Only part “G” needs more careful thought. I will be back with another post.

Opinion is divided as to whether or not you should send a copy of your AQ to the other side. Personally, I see no harm in sending an unsigned copy to the enemy by standard second class post. If you have demonstrated a good knowledge of case law, it may just provoke them to discontinue.

SH

ScabHunter · February 2, 2009

In the place for G - Other Information, write this -

Please find the following attached to this allocation questionnaire;

1) Section G - Other Information

2) Draft Order for Directions

This allocation questionnaire and its attachments were sent to the claimant on **/**/2009.

Fill the date in with the date you will send the AQ and the copy, probably tomorrow.

SH

ScabHunter · February 2, 2009

Here is what I would put in the documents attached to the Allocation Questionnaire. I would leave sending them for a bit so that other people can look through and give their opinion. You can never have too many opinions.

On the first piece of paper, 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 referred to in the Particulars of Claim, 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

* Copies of the 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

* Document, contract or deed of assignment

* Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

* 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 within 14 days thereafter file and serve the following

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

and on the other piece of paper, G - Other Information -

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

N149 Allocation Questionnaire

Section G - 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. I also respectfully request that the claimant be ordered to produce statements covering 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.

Its is respectfully requested this case be allocated to the small claims 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.

SH

Nottsdave · February 2, 2009

SH

Top Quality !

I will as you suggest hold fire for a couple of days then send.

Do I sign the docs ?

Notts

ScabHunter · February 2, 2009

You only need to sign the N149 form itself.

Don't forget to take a copy to send to the claimant before you sign it!

Send the signed N149, with the two other pieces of paper attached, to the Court by Special Delivery.

Send the unsigned copy of the N149, with copies of the two other pieces of paper attached, to HL Legal by ordinary 2nd class post. This is because it is only a "courtesy", and not a legal requirement, so it doesn't matter if they claim not to have received it. What it REALLY is, is a chance to demonstrate to the enemy that you know the relevant case law, and are going be an extremely difficult opponent to overcome.

As they have to pay to file their AQ, it may put a seed of doubt in their minds about throwing more money at the "project".

SH

Edited February 2, 2009 by ScabHunter
another typo

lunar jim · February 2, 2009

Subscribing, interested in seeing how this all turns out. Good luck ND

Nottsdave · February 2, 2009

Thanks Lunar

Livis · February 2, 2009

Subbing too NottsDave, just read your thread with great interest.

I'm wishing you the best of luck.

Livis xx:)

Nottsdave · February 2, 2009

Thanks Livis:)

krispykreme · February 2, 2009

Im Subbing to this very interesting thread, I llok forward to the next installment, Im having a problem with Capquest and Court too so will be keen to see their next step.

Best wishes

Krispy

creditcardmug · February 2, 2009

Pardon for intervening, but may i offer a couple of important changes to the excellent directions given by SH above, i have recently found these to be crucial.

In the first para add, "the original document must be brought to the hearing"

Delete the last two lines.

Kind regards to all

CCM

ScabHunter · February 2, 2009

Hi CCM,

Nice to see you looking in on this thread. Could you just elaborate on exactly what you mean here?

What exactly are you regarding as the first paragraph?

Delete the last two lines of what, exactly?

Why do you believe these changes are crucial?

I am not doubting you - you were one of my "mentors" on this site, after all - but it would be good to know for future reference.

SH

Nottsdave · February 3, 2009

bump

creditcardmug · February 3, 2009

Hi SH

Im advocating putting in a line to say the "original" documents must be brought to the hearing...the reason is that any docs they disclose must the be copies of the exact docs they produce at the hearing.(and this must be a valid cca)

So if they dont have them it ends here...and also stops them producing something else at the hearing, i.e. they can only rely on the original of the docs they disclosed...thats my thinking on that one anyway.

On the last two lines, this is from something x20 said...why hold yourself down to having only two weeks to file a full particularised defence, should they comply with the directions, you could make it 4 weeks, or not put it in at all.

Ill post up the actual directions made by the judge in my last one,for discussion, which stopped them in their tracks.

Here it is,

Each party shall deliver to every other party and to the court copies of all documents on which he intends to rely at the hearing no later than 14 days before the hearing

The original documents shall be brought to the hearing.

The claimant shall file and serve by 30 Nov particulars of how the sum claimed is calculated, and copies of the agreement and default notice.

Edited February 3, 2009 by creditcardmug

ScabHunter · February 3, 2009

Thanks CCM,

So it is in the actual Draft Order that the changes need to be made?

So, with the following, we should leave out the part in red. Should we replace it with anything, or just remove it?

And, should the line "the original document must be brought to the hearing" be placed where I have placed it here, in green?

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 referred to in the Particulars of Claim, 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 document must be brought to the hearing.

* Copies of the 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

* Document, contract or deed of assignment

* Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

* 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 within 14 days thereafter file and serve the following

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

Thanks for your input CCM. I will try to 'click' you again, but I bet it won't let me!

EDIT : It didn't - sorry.

SH

Conniff · February 3, 2009

Just a little thought, ND make sure you have a copy on something official of your signature how it really is written just in case it is required.

Superb thread - good luck.

creditcardmug · February 3, 2009

Hi SH

Yes that's where i put that line

Actually You could change the last bit to "The defendant thereafter shall file and serve and amended defence sufficiently particularised in response to the documents supplied by the claimant"

That way you're not tied to a deadline.

These are only suggestions BTW

Regards CCM

ScabHunter · February 3, 2009

It all makes sense.

It is so good when we can all learn from each other as we go along, and keep raising the standard of what we produce.

Notts, I would go with this amended version. I think good points have been raised which I shall bear in mind for the future.

SH

Nottsdave · February 4, 2009

Hi SH and CCM,

Are these ok ?

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 referred to in the Particulars of Claim, 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 document must be brought to the hearing.

* Copies of the 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

* Document, contract or deed of assignment

* Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

* 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

* The defendant thereafter shall file and serve and amended defence sufficiently particularised in response to the documents supplied by the claimant.