upto the eyeballs v CL Finance No CCA IN COURT ** Help **

[creditcardmug]

I dont want to sound like a damp squib, but Cohens never respond to anything, if you have sent them a request , their non-response speaks for itself.

 

If you get to a hearing you don't want to bring up endless correspondence concerning this, it will just cloud the main issues.

 

Best to just make the main point,i.e. The claimants disregard of the CPR.

[creditcardmug]

Dont know if you were all aware, but the company behind all this lot "Cattles", who own Wellcome/Lewis/C l Finance/Cohens etc have just laid off 1000 staff.

 

BBC NEWS | Business | Loan firm set to cut 1,000 jobs

[Goldlady]

Subbing:D

[upto the eyeballs]

OK this is my draft for my AQ Allocation Questionnaire many thanks to creditcardmug & andyorch

 

ALLOCATION QUESTIONNAIRE N150

 

Have you sent a copy of this completed form to the other party Yes

 

A. SETTLEMENT

 

For All

 

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage?

 

No

 

Reasons: Without production of the requested documents, I am at a disadvantage and am unable to negotiate a settlement without the full facts.

 

B. LOCATON OF TRIAL

 

Is there any reason why your claim needs to be heard at a particular court? NO

 

C. PRE-ACTION PROTOCOLS

 

You are expected to comply with the relevant pre-action protocol.

 

Have you done so? No

 

If No, explain why?

 

This case is not covered by any approved protocol; I have tried to act reasonably in exchanging information and documents relevant to the claim but have had no response from the claimant in this regard.

 

 

 

D. CASE MANAGEMENT INFORMATION

 

What amount of the claim is in dispute? £19,198.74

 

Applications

Have you made any application(s) in this claim? NO

 

Witnesses

 

Xx xxxxx All the facts in the case

XX xxxxx All the facts in the case

 

ExpertsNo

 

TrackFast Track

 

If you have indicated a track which would not be the normal track for the claim, please give a brief reason for your choice:

 

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.

 

 

E TRIAL OR FINAL HEARING

 

How long do you estimate the trial or final hearing will take? 4 Hours

 

Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or hearing?

 

Xxxx xxxxx

F PROPOSED DIRECTIONS

 

Have you attached a list of the directions you think appropriate for the management of the claim? Yes

 

If Yes, have they been agreed with the other party? NO

 

G COSTS

 

Leave blank

 

H Fee

 

I OTHER INFORMATION

 

Have you attached documents to this questionnaire? YES

 

Have you sent these documents to the other partyYES

 

If Yes, when did they receive them?

 

Do you intend to make any applications in the immediate future?YES

 

If Yes, what for?

 

An order seeking the Claimants compliance with information previously requested.

 

In the space below, set out any other information you consider will help the judge to manage the claim.

 

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 without production of the requested documentation will inhibit the courts ability to deal with the case.

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 judgement

 

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 and63, section 127(4) precludes the court from making an enforcement order.

 

 

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 this document must be disclosed before this case can progress any further.

 

 

 

 

 

 

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 send to the Defendant and to the Court:

 

• 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.
  
• 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,
  
• 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.
  
• A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.
  
• Copies of any statement or other document 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.
  

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

 

 

 

 

Any further suggestions before I send it and do I need to do statement of truth or just sign and date draft ?

 

 

 

[upto the eyeballs]

bump

[creditcardmug]

In the directions, item 1 add " the original documents to be brought to the hearing"

 

Item 2 add " together with proof of service"

 

Delete the last line

 

I suggest you dont send a copy to the other side (ammend the form to suit)...If you do make sure you dont sign that copy.

 

Either deliver to the court in person, or send by SD.

 

This could be multitrack have you checked? its ok to leave it as fast track either way as the judge will decide that.

[lisaf]

subbing

[upto the eyeballs]

thanks ccmug

[creditcardmug]

Just checked this will be multitrack, have you done any research on the implications of this?

[upto the eyeballs]

The claim is for just under £10,000 however still not received anything for this case. Will look into multi track

[creditcardmug]

Sorry, i thought i saw +15k in the above posts, if under 10k will be fast track,not so bad, but still check out the cost implications of fast track.

[upto the eyeballs]

Update...

 

Cohen's have submitted their AQ, not received my copy rang the court to send one.

 

Received letter from court today stating

 

The file has been placed before district judge XXXXX and she has stated the following,

 

"Permission of the Court is required to amend or withdraw his admission - CPR 14(1)(5) and the defendant should make the appropriate application" (form enclosed) N244

 

Now any ideas on what I should do now????

 

Has the judge not read my draft directions order / special directions letter?? (Post 29#)

 

Should I write a letter to the court asking them to put case before the judge again??

Edited January 26, 2009 by upto the eyeballs
typo error

[creditcardmug]

I don't understand, you haven't made any admission, have you?

[creditcardmug]

Admissions made after commencement of proceedings

 

14.1

 

(1) A party may admit the truth of the whole or any part of another party’s case.

(2) He may do this by giving notice in writing (such as in a statement of case or by letter).

 

(3) Where the only remedy which the claimant is seeking is the payment of money, the defendant may also make an admission in accordance with –

(a) rule 14.4 (admission of whole claim for specified amount of money);

 

(b) rule 14.5 (admission of part of claim for specified amount of money);

 

© rule 14.6 (admission of liability to pay whole of claim for unspecified amount of money); or

 

(d) rule 14.7 (admission of liability to pay claim for unspecified amount of money where defendant offers a sum in satisfaction of the claim).

 

 

(4) Where the defendant makes an admission as mentioned in paragraph (3), the claimant has a right to enter judgment except where –

(a) the defendant is a child or protected party; or

 

(b) the claimant is a child or protected party and the admission is made under rule 14.5 or 14.7.

 

(Rule 21.10 provides that, where a claim is made by or on behalf of a child or protected party or against a child or protected party, no settlement, compromise or payment shall be valid, so far as it relates to that person’s claim, without the approval of the court)

 

(5) The permission of the court is required to amend or withdraw an admission.

 

(Rule 3.1(3) provides that the court may attach conditions when it makes an order)

Edited January 26, 2009 by creditcardmug

[upto the eyeballs]

Hi CCMug,

 

This is the case if you remember where I initially part admitted the claim but then withdrew my part admission and submitted an embarrassed defence.

 

This was done via Northampton MCOL, They then sent notice that my defence has been filed and case was being transferred to my local court.

 

I can only assume that after filing my AQ the judge is not happy with my part admission withdrawal.

 

Maybe Cohens have objected to my actions? Won't know until I get copy of their AQ.

 

Any ideas how to proceed?

[creditcardmug]

That being the case you will have to do the AN then using the N244, theres another form to fill in to have the costs waived, its EX160.

 

I haven't filled these in before myself, hopefully someone will be on to help you with it.

 

Will you go with not having an understanding of court procedures until you researched the subject, and given that you only had 14 days, you rushed it and accidentally filed the part-admission?...being a litigant-in-person, you understand.

Edited January 26, 2009 by creditcardmug

[upto the eyeballs]

Thanks ccmug

 

Received AQ from Cohens today, they have filled in an N149 (Small Claims Track) but claim is for £9000 ish?

 

Why have they not filled in N150 like I had too? Will they have to do another?

 

In the Other Info section they remarks evidence will be within witness statement, deponent unknown at present???

 

Also MCOL accepted by withdrawal of part admission / and defence but on transfer to local court judge not happy, is my only option to fill in N244?

[creditcardmug]

In the N149 do they say it should be small claims, or fast track?....the two forms are almost the same, and ask the same questions in a different order, i dont think its anything to be concerned about, the judge will decide its fast track anyway.

 

Not sure yet what they mean re:witness statement.

 

I still think you need to do the N244.

[upto the eyeballs]

Thanks for reply ccmug

 

I have today sent letter to court basically explaining I received permission from Northampton MCOL to withdrawal part admission and enter defence so in LIP style is this OK or do you want me to fill in N244.

 

Also on Cohens AQ submitted they have requested small claims track ??

 

Thanks for your help as always!!!

[upto the eyeballs]

Update....

 

Court have replied requesting that I complete the N244 for my previous withdrawal of part admittance and file of defence.

 

Can anyone help on filling in N244, do I need to do witness statement etc.

 

Basically I need to do the following

 

1. Originally part admitted claim due to time constraints / non understanding of legal system / error

 

2. After researching alleged debt requested proof i.e CCA request, CPR request, statements to show possible charges etc

 

3. Company failed to supply any proof of debt No cca or default notice

 

4. Rang Northampton MCOL to explain that I wished to withdrawal my part admission and that I intended to defend the whole claim

5. They advised I put request in writing, which I did.

6. Then received confirmation case was being transferred to my local court along with allocation questionnaire to complete which was duly submitted.

7. Then receive letter from court advising that the permission of the court is needed to withdrawal a previous admission.

 

So I would be grateful for any help?

Edited February 2, 2009 by upto the eyeballs
typo error

[upto the eyeballs]

bump.

[Goldlady]

I have never done this either. But there is a first time for everything:)

 

I would put in box 3 - 'I am the defendant in this matter. As a litigant in person I originally completed the admission on the forms supplied with the original claim, as I did not know what to do. I was unsure how much was owed to the claimant, if anything at all, and have since sought proof of the alleged debt. The claimants have been unable to supply me with a copy of the original agreement or any other evidence to support their claim and I therefore wish to amend my response to their claim to a full defence.

 

 

It's a start..... Constructive criticism welcome:D

[upto the eyeballs]

Thanks Goldlady Any more thoughts anyone?

[upto the eyeballs]

bump..

[upto the eyeballs]

bump