CL/Cohen claimform - old goldfish card 'debt' **DISC'd WON**

[scarydays]

Hi Blueboy - no they never amended the POC, as far as I am aware. I certainly received no notification of that. The account number appears to be valid.

[scarydays]

just looking for some advice on completing my AQ - It's an N150

 

In (F) Proposed directions I was going to put something along the lines of :

 

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) deliver to the Defendant a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice

© notices of assignment

(d) 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.

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

And in 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 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 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 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 these documents must be disclosed before this case can progress any further

And I as going to tick Y and send this info to the other party.

Am I on the right track? Any comments gratefully received.

Thanks in advance,

SD

[atwozee]

Yep – doing good SD.

I added a little extra but entirely up to you whether you include it in yours.

In draft directions order I requested a copy of the Deed/sale agreement as follows -

The Deed of Assignment or sale agreement giving CL Finance Limited legal entitlement to make the claim.

And this in other information to explain why –

A copy of the Notice of Assignment along with proof of delivery thereof and a copy of the Deed of Assignment or sale agreement is required to verify that lawful assignment of account number xxxxxxxxxxxxxxxx in compliance with the Law of Property Act 1925 has taken place between the original creditor and CL Finance.

[scarydays]

Many thanks Atwozee

[scarydays]

It' been 2 weeks since the deadline for returning the AQ and I have heard nothing back from anyone. Is that unusual? Should I contact the court to find out what is happening?

[blueboy987]

Give the court a call and they can tell you what is happening. It was 2 weeks or so after the AQ deadline before I heard anything in writing, though I'd call the court every week or so to check.

[scarydays]

Thanks Blueboy. I contacted the court today. They said that HC/CL Finance did not submit an AQ. My case was referred to the judge on 07/04. The chap I spoke to said that the judge is likely to give them another 7 days in which to respond, and if they don't then he is likely to strike it out. However, he did say, he's not the judge, obviously, but was just speaking from experience. He said they would contact me, i don't need to do anything ........ So I guess I wait!

[blueboy987]

Provided they haven't sent in their AQ, you should receive a copy of the "unless" order that the judge will issue. Have a careful read of it, mine said the case would automatically be struck out if they didn't respond by the deadline - not sure if this is normal or not.

[scarydays]

Update from me ..... I still have heard nothing from the court.

 

Yesterday I received a letter from HC offering to settle for approx 75% of the debt they claim is owed.

 

I have still received no information from them at all.

 

I have 14 days to respond - any suggestions?

[blueboy987]

Call the court and find out what is happening with the case.

[scarydays]

I phoned the court earlier in the week, and apparently HC have now filed an allocation questionnaire. The court person said to just sit tight and I will hear what Track I have been assigned to.

 

Is this really bad news? It looks like I will now be going to court?

 

It's so unfair that HC are allowed to file their AQ two months late?

 

Can i request a copy of the AC - as they have still not sent me any information.

 

Thanks,

 

SD

[scarydays]

Bump

[atwozee]

It can drag on Scarydays - just had mine struck out by the court because the claimant failed to supply the requested documents - wait and see what the court does next.

[scarydays]

Thanks Atwozee. Congratulations on getting your case struck out. It gives me some hope!!

[scarydays]

Hi Atwozee,

 

Well this morning I have received a General Form of Judgement or Order from the court. The case has been assigned to fast track and the claimant has been asked to file and serve a copy of each of the documents mentioned in the particulars of claim - and lists 5 of them.

 

It says they must comply by 4pm on 06/07 and failure to comply means the claim will be struck out.

 

So I hope I get a similar result to yourself.

 

SD

[atwozee]

Clock’s ticking then!

When they fail to send the requested documents by the date on the order then I suggest you type up a simple witness statement (I can help you with it if you like) and send this recorded delivery to the court along with a letter to the Court Manager asking for the claim to be struck out in compliance with the order.

[scarydays]

Many thanks Atwozee. I will be back for more assistance on the 6th July - hopefully

[atwozee]

Hi Scarydays – did they comply with the order?

[scarydays]

Hi Atwozee - thanks for thinking of me!

 

I called the court on the 7th and was told that they had a backlog of stuff to process, but as it stood they had not received anything. They said that I should also have been served with a copy of the documents, so given that I had not, it would appear that Cohens had not complied, and the case would be struck out. They told me to call back today to confirm.

 

I have called today and was told that it was not struck out, but that Cohens had sent a letter on the 9th and asked for the case to be discontinued. And that the file was now with the judge to make a decision.

 

I am a little concerned as I am not entirely sure of the implications of this and I am now away until August 1st so will not receive any info from the court. I have asked for this to be recorded on my file at the court, which they have done.

 

What are your thoughts? And should I do anything else right now?

 

SD

[atwozee]

If Cohens have asked for it to be discontinued then it's pretty much all over.