Natwest taking me to court ***All 3 Claims Discontinued***

[AndyOrch]

Hi Andy /pumptytums

 

That's great - thanks very much, yes I shall go down the route of the N244 form.

Andy - apologies I meant to explain the difference of amounts - then got caught doing my children's tea!

 

Yes - you're spot on - the original amount did comprise of the the combined totals of O/D and Personal Loan.

This new claim from Eversheds is just for the Personal Loan.

 

I can confirm on the NoD - the box which is ticked is the one that states: discontinues all of this (claim)

 

Thanks so much for your time.Thats ok then

 

x:)x

 

Yes - I have definitely retained the N279 form, so that's good news on my side

 

 

Just wanted you to check before any applications, proceed:-D

[texanbar]

Hi peeps,

 

Just to let you know that I have just finished completing the N244 form. After revisiting my case file, I will be enclosing 4 copies of each of the following documents to provide the court/Judge a summary of events:

 

-my defence filed 6th July, 2009 in response to the original claim and its POC

 

-General Form of Judgment or Order from Northampton CC dated 8th September 2009, ordering NW to provide

(a) a true copy of the whole of the Agreement relied on which has been signed by the Defendant

(b) a true copy of the default notice

 

-Notice of discontinuance dated 7 April 2011

 

I will send these off tomorrow, by recorded delivery.

 

I shall also complete the Acknowledgement of Service tomorrow - can I please ask if I need to mention I have completed the N244 somewhere on the form?

 

Many thanks again for your kind help.

A very tired tex

x:)x

[AndyOrch]

Dont be too fast on that AoS Tex, wait until the very last day and see what transpires with your application.

 

 

Regards

 

Andy:wink:

[texanbar]

Oh okay Andy - that's just what my OH has just said.

 

Great minds eh?!

 

Coolio - I shall hang fire until day 13.

Many thanks - you're a gem

x:)x

[texanbar]

My N244 application has been sent today by recorded delivery. Will keep you all updated.

 

Thanks everyone

x:)x

[texanbar]

Hi all,

 

I phoned up Cardiff court yesterday regarding the N244 application and was told it is still with the judge awaiting direction.

 

As I must respond to the AoS by 25 July, 2011, the courts advised I should complete the AoS with my intention to defend all the claim.

 

Today I have sent the AoS back via recorded delivery and will keep you all posted.

Best wishes

x:)x

[AndyOrch]

Ok Tex thanks for the update.

 

Regards

 

Andy

[texanbar]

Hi all,

 

This morning received my bundle of documents back from Cardiff court along with a 'Notice of Hearing of Application.

 

The bundle was:

 

a) my defence filed 6th July, 2009 in response to the original claim and its POC

b)General Form of Judgment or Order from Northampton CC dated 8th September 2009, ordering NW to provide

(i) a true copy of the whole of the Agreement relied on which has been signed by the Defendant

(ii) a true copy of the default notice and

c)Notice of discontinuance dated 7 April 2011

 

 

The Notice of Hearing Application says:

The hearing of the defendants application for AN ORDER (see copy attached) will take place at 12.05pm on the 19th August, 2011 at Cardiff County Court, Cardiff .

 

I guess I now need to contact Cardiff and ask them to transfer the hearing to nearer to home. Will keep you updated.

 

Warm regards

x:)x

[AndyOrch]

Yes Tex get it transfered, what does it say on their application just out of interest?

 

Andy

[texanbar]

Hi Andy,

 

This is all it says:

 

Notice of Hearing Application says:

The hearing of the defendants application for AN ORDER (see copy attached) will take place at 12.05pm on the 19th August, 2011 at Cardiff county court, Cardiff .

 

HOwever, Eversheds have been persistent in trying to call me on my mobile and have been leaving messages saying I must call them back urgently. I have ignored all their calls.

 

Should if you need anything further.

Kind regards

Tex

x:)x

[AndyOrch]

Hi Andy,

 

This is all it says:

 

Notice of Hearing Application says:

The hearing of the defendants application for AN ORDER (see copy attached) will take place at 12.05pm on the 19th August, 2011 at Cardiff county court, Cardiff .

 

HOwever, Eversheds have been persistent in trying to call me on my mobile and have been leaving messages saying I must call them back urgently. I have ignored all their calls.

 

Should if you need anything further.

Kind regards

Tex

x:)x

 

Was the AN not attached?

 

Andy

[texanbar]

Ooh sorry Andy, I do apologise...

 

yes the order says:

 

 

The Defendant requests the Claimants case is struck out as they have not acted in accordance with CPR38.7. The Claimant has not sought the permission to issue a claim that was previously discontinued on 7 April, 2011 after a defence was filed on 6 July, 2009 and the claim arises out of facts which are the same or substantilly the same as those relating to the discontinued claim (Claim number ********). The Defendant believes this claim is an abuse of process.

 

 

Best regards

Tex

x:)x

[AndyOrch]

Thanks Tex just for reference thats all:wink:

 

I wonder what Evos could possibly want to talk to you about??????

[texanbar]

No worries...

 

I know, fancy ringing me up with this going on in the background...

 

x:)x

[texanbar]

SORRY - URGENT INFORMATION REQUIRED

~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 

 

Dear all,

 

Last week, after speaking to Cardiff courts, I emailed them requesting my claim be transferred to my local court in Northampton.

 

Today, I suddenly realised that it's the last day for me to submit my defence for the claim. I have spoken to Northampton explaining the situation and they said even though I have the N244 application being processed and a new court date will be allocated in due course, I must still submit a defence for the claim. Otherwise, Eversheds can still place a judgement on me.

 

As such, can someone advise if I should just resubmit a copy of my previous defence (see copy of it below) or should I try and put together another one.

 

I will hand-deliver the paperwork - I have until 4.00pm today.

 

Any urgent assistance would be greatly appreciated - I'm sorry for taking my eye off the ball.

 

Best wishes

x:)x

 

 

 

Previous defence submitted was:

 

 

I am the Defendant in this action and make the following statement as my defence to the claim made by National Westminster Bank.

 

Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

No particulars are offered in relation to the nature of the written agreement referred to, the method used by the Claimant to calculate any outstanding sums due, or any other matters necessary to substantiate the Claimant's claim.

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. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present.

 

It is averred that the Claimant has no right of action until such time as the default is remedied and the Claimant supplies the documents referred to above.

 

Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow the Defendant to prepare a defence, the Defendant wrote to the Claimant’s solicitors on 7th January 2009 requested the disclosure of information from the Claimant pursuant to the Civil procedure rules CPR 31.14 allowing seven days to comply.

 

Further to the above on the 3rd February 2009, a letter was received from the Claimants Solicitors requesting an extension of 7 days to supply information.

 

The information requested amounted to copies of

 

(1) the Agreement referred to in the Particulars of Claim

 

(2) the Default Notice referred to in the Particulars of Claim

 

(3) any other documents the Claimants seek to rely on in Court.

 

To date the Claimants have failed to accede to the request under the CPR 31.14 and the Defendant has not received any such documentation requested, apart from two separate statements. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

On the 9th January 2009 I also requested a copy of the agreement separately via a Sec 77 request allowing 12 + 2 days to respond.

 

 

On the 30th January 2009 I received a response from NW (CMS) their reply to my CCA request stating they are not obliged to send me a 'true copy' of my agreement. Documentation attached was a Schedule of Arrears for a loan account and a printed copy of a Credit Agreement for the Personal Loan which bears no signature. The CPR clearly sets out that original agreements must be made available for inspection as set out in Practice Direction 32 which states that:-

 

“13.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.”

 

 

The Claimant would be aware of the fact that they would need to be able to produce a copy of the True original agreement should they ever need to take legal action to enforce the agreement. The Defendant requests that the claimant makes available the original agreement between parties for inspection and all other documents that are referred to within the agreement.

 

Without disclosure of the relevant requested documentation the Defendant is not able to assess if he is indeed liable to the Claimant, nor able to assess if the alleged agreement is properly executed.

 

 

 

Under s 61 of the Act, any agreement regulated by the Consumer Credit Act 1974 Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under s 60(1).

 

The prescribed terms must be within the agreement. They cannot be in a separate document for it to be compliant with s 60(1) [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

 

Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s 60(1), it is improperly executed and only enforceable by court order[Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)]. The Claimant has not supplied the Defendant with a copy of the agreement which the Claimant bases this claim upon but a reconstructed one which I may have signed.

 

The Claimants also state in their Particulars of Claim that a Default Notice has been served in accordance with s 87 of the Act. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received.

 

S 87 of the Act clearly sets out that a Default Notice is a prerequisite before a creditor can become entitled to take any action in respect of a regulated credit agreement.

Furthermore s 88 of the Act requires that a Default Notice must be in the prescribed form. The prescribed format for a Default Notice 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).

 

Furthermore it is averred that any Default Notice or Termination Notice served that contains penalty charges, the charges are unfair and therefore invalid under the Unfair Terms in Consumer Contracts Regulations.

 

The Defendant puts the Claimant to strict proof that any Default Notice said document in the prescribed format was delivered to the Defendant and that any, allegedly sent Default Notice was valid.

 

 

AND the Defendant

 

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot be enforced following the Claimant’s default in failing to supply a true copy of the executed credit agreement.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. The Claimants are not entitled to claim contractual interest @ 8% per annum as they have not established a legal right to issue a claim or proven that any debt exists.

 

 

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

 

 

 

 

Statement of Truth

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

[AndyOrch]

H Tex

 

Ok everything hinges on the 19th Aug hearing as to whether the Claimant can represent the claim.The fact hat they have changed the figure ie. PL+O/D

to just the PL now is very shrude on their part to make the claim look new.Within your NoD the claimant quite clearly state " The whole of the Claim" so in effect

the claim is the same just reduced amount and P.o.C .Therefore i would alter the defence slighty to incorporate this fact and in the first para state

 

" I am the Defendant in this action and make the following statement as my defence to the claim made by National Westminster Bank.This claim is the same as

the claimants claim brought on XX XXX XXX number xxxxxxx and Discontined by the Claimant on xx xxx xxxx (see attached copy of Notice of discontinuance)attached.

It is my understanding that the Claimant must seek the permission of the courts to represent any same case that was discontinued and is an abuse of CPR 38.7.

I have made application on the above grounds to which I await an outcome at the hearing of xx xxxxxx xxxx.

 

Original Defence

Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the claimant’s Particulars of Claim and put the Claimant to strict proof thereof. Etc Etc ..............

 

 

Andy

[texanbar]

Hi Andy,

 

As always, many thanks for coming back so swiftly.

 

I shall amend the defence to include the above paragraph and nip down to the courts.

 

You're a star.

Best wishes

Tex

x:)x

[texanbar]

Hi all,

 

Just back from the courts - all handed in. Just waiting now I guess for a new hearing date from Northampton. Will keep you all updated.

Warm regards

Tex

x:)x

[AndyOrch]

If 19th August goes to plan Tex that will be the end of the matter.

 

Andy

[texanbar]

Hi Andy,

 

Yes - fingers crossed!

 

x:)x

[BRIGADIER2JCS]

Hi Tex & Mr. Tex,

 

I have just read your thread and wish

you every success.

 

Brig.

[texanbar]

Awh thanks Brig - appreciate your support

x:)x

[texanbar]

Hi all,

 

Had 2 pieces of correspondence from the Northampton CC today. One is:

 

Notice of Transfer of Proceedings

~~~~~~~~~~~~~~~~~~~

 

To all parties

This claim has been transferred to the Northampton County Court for enforcement.

 

And the other piece of correspondence is:

 

 

General Form of Judgment or Order

~~~~~~~~~~~~~~~~~~~~~~

Before DJ Hendicott sitting at Cardiff County Court, Cardiff Civil Centre, Cardiff

 

Upon reading the application of the Defendant(s)

IT IS ORDERED that

1. The application is transferred to the Northampton County Court

2. The Interim Charging Order shall continue in the meantime

3. The hearing on the 19 August 2011 is vacated

 

Dated 4 August 2011

 

I take it point 2. regarding the Interim Charging Order is the N244 application, unless Eversheds have sneaked in a charging order over my property

 

Best wishes

Tex

x:)x

[AndyOrch]

Looks like they have made application for an ICO Tex on what grounds is baffling, considering they dont have a judgment to support said application.

The rest is just procedure.

 

Andy

[texanbar]

Oh great just what we need. First we've heard of it.

 

Okay, I shall call Northampton Courts tomorrow and get that clarified.

 

Thanks Andy

Tex

x:(x