Urgent need to defend CCJ from GE money RE: Burtons store card

[DocH]

Disclosure before proceedings start

 

31.16

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

 

(2) The application must be supported by evidence.

 

(3) The court may make an order under this rule only where –

(a) the respondent is likely to be a party to subsequent proceedings;

 

(b) the applicant is also likely to be a party to those proceedings;

 

© if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

 

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

 

(ii) assist the dispute to be resolved without proceedings; or

 

(iii) save costs.

 

 

 

(4) An order under this rule must –

(a) specify the documents or the classes of documents which the respondent must disclose; and

 

(b) require him, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

 

(ii) in respect of which he claims a right or duty to withhold inspection.

 

 

 

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

 

(b) specify the time and place for disclosure and inspection.

 

The above is CPR 31.16 - Cohens are talking ballhooks. You may need a court order to force disclosure.

[will lliw]

Ive seen a few threads about submitting an embarrassed defense, would you reckon that is the way forward since Cohen’s wont play?

 

Then proceed with a view to getting a court order as you suggest?

 

Cheers

Edited January 15, 2009 by will lliw

[DocH]

Personally I'd keep Cohen's on the backfoot. They are under an obligation to provide the information requested via CPR 31.14. Ask yourself why they don't want to.

 

Have a read of post No. 59 in this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-3.html#post1771008

[will lliw]

Personally I'd keep Cohen's on the backfoot. They are under an obligation to provide the information requested via CPR 31.14. Ask yourself why they don't want to.

 

Have a read of post No. 59 in this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-3.html#post1771008

 

 

Thanks DocH this is great stuff! I am preparing the n244 today but could do with some advice on dates, my defence is due in by 4pm next monday (2 feb). In my draft order im not sure what date to put for the claiment to comply by, im thinking 7 days from tomorow. What do you think?

 

below is a copy of X20's draft I will use.

 

Claim No:

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request for example, [1] the agreement [2] the default notice and [3] the assignment,]

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

[DocH]

Thanks DocH this is great stuff! I am preparing the n244 today but could do with some advice on dates, my defence is due in by 4pm next monday (2 feb). In my draft order im not sure what date to put for the claiment to comply by, im thinking 7 days from tomorow. What do you think?

 

I don't think the judge will buy that, he won't necessarily see your N244 tomorrow. You want something like "Within 7 days of the date of the court order" or similar. Obviously it will be the judges decision and don't be surprised if he makes it 14 or even 28 days.

 

Have you got your embarrassed defence together yet?

Edited January 28, 2009 by DocH

[will lliw]

I don't think the judge will buy that, he won't necessarily see your N244 tomorrow. You want something like "Within 7 days of the date of the court order" or similar. Obviously it will be the judges decision and don't be surprised if he makes it 14 or even 28 days.

 

Have you got your embarrassed defence together yet?

 

I will just put a date then and let the judge do what he wills! I have not considerd the embarrased defence since you showed me X20's wonderfull post. My thinking being that if documnets do turn up then I will have to assess it then and if they dont then hopefully I can get this struck out.

[DocH]

You will still need to put in a holding/embarrassed defence. The court order resulting from your N244 probably won't go out until some time next week. If you don't put in a defence the opponents will get a judgement by default.

 

Are you able to hand deliver the defence to court on Monday?

[will lliw]

You will still need to put in a holding/embarrassed defence. The court order resulting from your N244 probably won't go out until some time next week. If you don't put in a defence the opponents will get a judgement by default.

 

Are you able to hand deliver the defence to court on Monday?

 

 

No can do on monday, I was planning an asking for an extension of time for serivce of the Defence as suggested by x20. Do you think this will be ok if i post it special first thing tomorow?

 

'An order extending time for service of the Defence and directing that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice and [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and the documents are required owing to the age of the case and to enable the proper preparation of a Defence.'

 

[DocH]

Okay, I see what you are doing now. Yes to Special Delivery tomorrow. It is imperative that the judge sees the application prior to Monday's deadline. In this situation I would enclose a covering letter to the court manager politely asking that the application be placed before a judge prior to the Monday deadline, with an explanation of the need for urgency. Then once you have confirmation of delivery via the Royal Mail website (don't forget to print off a copy for your records) I would ring the court manager's office to confirm that it has been seen by the judge - and keep on to them until it has.

 

Bearing in mind that the judge might reject your application, I can't see why he would but just as a precaution, I'd put together an embarrassed defence that you could perhaps fax to the court on Monday if necessary.

Edited January 28, 2009 by DocH
missing info

[DocH]

This is one of pt2537's famous embarrassed defences. You'll need to amend to suit your particular circumstances:

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxx - Defendant

 

 

Defence

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants’ Particulars of Claim disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

5. Further to the case, on xx/xx/xxxx I requested that the claimant provide a true copy of the executed credit agreement pursuant to s78(1) of the Consumer Credit Act 1974.

 

6. For clarity, s78(1) states:-

78. Duty to give information to debtor under running-account credit agreement.-

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

7. S78(6) of the Consumer Credit Act 1974 sets out the consequences of failure to comply with such a request and states:-

s78 (6) If the creditor under an agreement fails to comply with subsection (1), he is not entitled, while the default continues, to enforce the agreement

 

8. Capquest Investments Limited have made no reply to this request.

 

9. Further to the case, on xx/xx/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules Part 31.14, copies of the documents mentioned in the Particulars of Claim, namely the Credit Agreement, the Notice of Default, and the Notice of Assignment.

 

10. Despite the fact that the Civil Procedure Rules 31.15 demand a response within seven days, my request for information under the Civil Procedure Rules 31.14 has been ignored. The request was sent via Special delivery, and was signed for on xx/xx/2008. Please find attached exhibits 2 and 3, copies of proof of posting and proof of delivery. Since the claimant has refused to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimants allegations at this stage

 

11. It is my opinion that the claimant is trying to frustrate matters in refusing to disclose the documents requested and the claimant is ignoring the overriding objective and the courts attention is drawn to the fact that the claimant has refused to respond to my legitimate request. It is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me.

 

12. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to assess if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

13. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

14. Notwithstanding points 12 and 13, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

15. The claimant is therefore put to strict proof that such a compliant document exists

 

16. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

 

17. Notwithstanding point 16, I put the claimant to strict proof that any default notice sent to me was valid. I note that 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)

 

18. 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 a 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)

 

19. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

20. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

21. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 9. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

 

22. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in XXXX, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

 

Statement of Truth

 

 

I xxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

[will lliw]

Thanks, I now realise I should have sent this off last week!! Do you think it would be better if i deliverd the order tomorow in person?

[DocH]

Not sure which bit you are referring to - defence or application? I presume you mean the application, so yes it would be wise if you can.

[will lliw]

Not sure which bit you are referring to - defence or application? I presume you mean the application, so yes it would be wise if you can.

 

Yeah i meant Application sorry still getting use to the lingo. OK then I fancy a nice day out tomorow so will take a drive to Northampton and deliver this in person!

 

Thanks for your help tonight, I might have been in a pickle come next monday!

[DocH]

You're welcome. Enjoy the day out.

[will lliw]

Well the bulk clearing centre was easy enough to find just around the corner from the market and the charge for submitting my n244 was only £40! I can say the staff were really helpfull but I was a bit chocked when they startd scribbling on the top of the n244 I had spent some time getting right but they assured me it was to make there life easier!

I was also told that there was now a bar on my file and no action could be taken untill the judge has made a decesion on my order request and that I would be notified in writing.

 

All in all "Jobs a good un" (so far) I amused myself by making the order deadline 13 Feb (friday!) :twisted: Hope it doesnt backfire, I know for sure I havent walked under any ladders latley but did smash a mirror a few weeks ago!!!!

[DocH]

Just sit back and enjoy the peace for a bit now. Be interesting to see if the judge agrees to the strike out element of the application.

[will lliw]

According to the lady ive just spoken to at Northampton bulk clearing centre there is a 3 week backlog that the judges are working through. This is the reason why I have still not had a judge make a decision on my order and extension. I was advised today by the same lady to submit some sort of defence just incase the judge goes in favour of the claimant and judges against me, because Ive submitted no defence then automatically I would have a judgment against me. So I am now going to submit an embarrassed defence just to be on the safe side. She also said that if I get my order and extension then the case would be transferred to a local court and I would have to attend in person

[DocH]

According to the lady ive just spoken to at Northampton bulk clearing centre there is a 3 week backlog that the judges are working through. This is the reason why I have still not had a judge make a decision on my order and extension. I was advised today by the same lady to submit some sort of defence just incase the judge goes in favour of the claimant and judges against me, because Ive submitted no defence then automatically I would have a judgment against me. So I am now going to submit an embarrassed defence just to be on the safe side.

 

What happened to the bar that was supposedly placed on your file to stop any action until the judge had made a decision on the case?

 

She also said that if I get my order and extension then the case would be transferred to a local court and I would have to attend in person

 

Bog standard court procedure, nothing to worry about.

[will lliw]

The bar is in place so all is good, just didnt think to mention it!

[DocH]

Fair enough

[will lliw]

Oh man I feel very euphoric now but ive just had an extremely bad 30 minutes and I am I'm uttelry gob smacked at the antics of HC & Co!

 

Allow me to clarify,

 

I recieved a letter this morning from HC & Co informing me judgment has been enterd against me and I should pay £XXX monthly as orderd. The letter goes on to say I must make payment and they are in control of the order etc.....

 

I freaked as you can imagine!

 

After 10 minutes of chasing my own tale I managed to get it togethor enough to log onto MCOL to verify this. However, this told a diffrent story and the claim was still open. I began to wonder what if and relaxed a little but was still far from happy.........

 

The next course of action was to phone the court just to double check that MCOL was up to date. 20 minutes of waiting and agonising on hold yielded well as I was told no judgment has been entered and my bar is still in place, I was also told a district judge is due to look at my order request sometime this week and that HC & Co applied for a judgement last week but this was refused as the case was barred .

 

So here I am at the end of all that, wondering what the hell HC & Co are playing at by sending me this letter.....

 

Are they Harrasing me?

Did they send this letter last week before there judgement request in the belief that judgment would be enterd in there favour?

And if they did isn't that still Harrasment or somthing similiar?

 

The mind boggles and I am far from happy about HC & Co's conduct, I wonder how many chimps work at HC & Co.

 

Answers on a post card please.....

[blind-as-a-bat]

In a word yes

 

That can not be discribed as anything but herassment, they had no right to claim judgement had been given unless they knew it had, this shows there true colours.

 

The are useing the legal system with little or no intention of following cases through in the hope either they win by default, or the defendant gives in and pays, they are not really intrested in fighting a court case if a defendent defends, they have proved that time and time again on here.

 

But what you can do with that info, well i would make sure the court, and judge are aware, and record it, i would also use it in your case evidence if it gets that far.

 

You could also report this behaviour to the usuall bodies OFT, TS etc, but i am sure your aware that may not get you very far, but you might as well lodge a complaint and see

[will lliw]

Hi Bat and thanks for looking in, I must admit i'm quiet amused this afternoon having had some time to chill out over that letter but I also feel very angry to. People like this make me sick and if I had wolves I would cast CH & Co out into the yard to prevent them from bullying anybody else. I just wonder how many people have fallen prey to there tactics, I imagine frail old people starving or/and freezing to death trying to cobble togethor what little cash thay have because they believe the lies these sharks peddle.

 

I would like to present this letter to the judge in person and watch whilst CH try and explain it. Could I just amend my defence and include a bit saying that CH are now harrasing and bullying me?

[DocH]

T*ssers! Oh yes, put something in your amended defence, if you get the chance to put one in, they're deliberately misleading you. Also report the numpties to the SRA (Solicitors Regulating Authority). This is not the first time this bunch have done this.

[will lliw]

T*ssers! Oh yes, put something in your amended defence, if you get the chance to put one in, they're deliberately misleading you. Also report the numpties to the SRA (Solicitors Regulating Authority). This is not the first time this bunch have done this.

 

 

I actualy submitted an embarrased defence yesterday on the advice of the Northampton centre just to prevent a judgment by default should the judge not agree with my requested order. I was told today when I wrang earlier that this defence would be sent to CH and I think she said 33 days for them to respond. However I am still waiting on my judgment for the order which should be by end of this week. So I think I just need to wait a little longer and see what happens. I'm not sure how I would go about submitting an amended defence but i did include this paragraph in my embarrassed defence

 

Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 9. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

 

Would appreciate any advice on this matter and meanwhile I shall draft a complaint letter to SRA after I find out who and where they are.

 

Cheers

 

W