Jump to content


CL Finance - Court defence by 2nd Feb HELP!!


Stevel1959
style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 5452 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Hi CCM

 

Thanks for replying. ChasedbyAgencies and I have been working together on this one. The defence has to be at the court Monday morning - short notice eh? Any help you can give us will be very much appreciated.

Thanks in advance.

Link to post
Share on other sites

  • Replies 59
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Hi CCM,

 

I was only going to include attachments if I sent by Special Delivery. I have done the character count/line count on the defence above and it comes to 7,340 characters and 136 lines which will fit the 8,000 limit to file online. Obviously I would take out any bits referring to attachments, making it shorter. Dont want to put anyone to too much trouble, just need to feel confident I have included anything important. Thanks for looking at this, its really good of you to do so :-)

Link to post
Share on other sites

Hi Chasedby

In para 13 of your defence you have a typo 'notwithstanding point 21'. Should read 12.

Does this mean your fingers have turned to thumbs:D

 

Al

 

Goodluck.

-------------------------

CAPITAL ONE * SETTLED*31st Oct 06

HBOS *SETTLED* 8th Oct 06

WOOLWICH *SETTLED*12thJan2007

Monument (Barclays) *SETTLED*10thMar2007

Link to post
Share on other sites

Hi, just read it again, i suggest you use it as is, as you say it will fit on MCOL, leave item 11 in, you don't need to include the relevant section of the act for item 6.

 

Basically you're putting them to strict proof of everything, and leaving the door open to file a fully particularised defence, should they produce the documents.

 

When/if it gets to the next stage, AQs, in your draft directions you need to insist the original documents are produced at the hearing.

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

Link to post
Share on other sites

  • 1 month later...

Update - received Acknowledgement from court for receipt of defence, then nothing.

Now received Form N152 (1 page only) notifying moved to local County Court, with a copy of the Allocation Questionnaire to be returned by 30 MARCH!!. The Court took 5 days to post it out from date of issue (postmark on envelope) sent it 2nd class, and it arrived whilst I was away for a few days.!! Have read CreditcardMugs thread, but not sure what to do. CCM received form N150, but I have not received, should I have been sent it?

The only form I have to fill in which I will have to take to the Court on Monday is N149 AQ (small claims tracks) (04.08). I am not sure what I need to do.

 

Firstly I would like to to change the location of hearing (B) as the court they have transferred to is in my postal code area, but is not the nearest or easiest for me to get to. I have ME and tire easily and get mentally fatigued and would like to reduce the stress by transferring to a court in an area that is familiar to me and easier to get to. Would this be considered a valid reason?

 

Not sure about C Track, I think the answer is yes?

E -Experts, do I want to keep this open with a Yes?

 

G - Other Information - What should I put in here? for example, Ihave had no response from CCL to CPR request, except to say they dont need to provide the information. Do I request an order/judge directions for them to comply with this.

 

Please can someone help, I am trying to read threads but not getting very far in knowing what to put on this form.

 

All help much appreciated

Link to post
Share on other sites

Some other info. CCL didnt provide a Notice of Assignment when requested, however I have been paying a small amount to Barclaycard by S/O each month. I read somewhere that without valid Notice of Assingment, or even with, if you make payments to the original creditor, that the debt reverts back to them. Should I mention this in 'Other Information' ?

Link to post
Share on other sites

Hi, been trying to find you today under stevel1959, but it doesnt come up in search?

 

I see your online now, so can you post up or point me to

 

The POC

The defence

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

Link to post
Share on other sites

Hi CCM,

 

 

Defence submitted online:

 

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: -

The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insuffic-iently 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 proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agree-ment 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) Neither a copy of the purported credit agreement that the claimant cites in the Particulars of Claim, nor 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 been served attached to the

claim form.

c) Without fair warning the claimant brought this action without sending a Letter Before Action as required under the Pre-Action Protocols Para 4.3.

3. Consequently, it is proving difficult to plead to the particulars of the claim as matters stand, and I put the claimant to strict proof thereof.

4. 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case and by which this agreement is regulated by.

5. Further to the case, on 11/01/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules 18 , which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged

repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the Claimant is in

default of said request under section 78(6)(a) of The Consumer Credit Act 1974.

6. To Date the claimant has refused my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose

this defence without disclosure of the information requested, especially as I am a Litigant in Person. I have not yet had the opportunity to assess if the documentation which 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 claimant is therefore put to strict proof that such a compliant document exists.

7. It is neither admitted nor 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 also 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 comply with the prescribed format for such document as 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 (SI2004/3237). Failure of a default notice to be accurate not only invalidates the default notice but is an unlawful rescission of contract.

8. The Defendant denies that there has been any failure to make payment in accordance with the alleged agreement. The Claimant has failed to produce a copy of

a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the

Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

9. Without Disclosure of the relevant requested doc-umentation 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, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

10. 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. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

Link to post
Share on other sites

Looks like a good defence to me.

we have two posts about CL Finance, one where we had to fill in the N149 and one where we had to fill in the N150.

ccm has kindly posted on the thread about the N150

and ncf355,ccm and goldlady have all posted about the N149.

If it would help please have a look at them and bump your thread for further help from ccm.

 

Best regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

Link to post
Share on other sites

Hi again, here is the info for N149, im presuming its for under 5k,

 

A tick no

 

B tick yes (if it has already been transferred to your local court) if it has write that in the box, if not write that you are unable to travel etc.

 

C tick yes

 

D write none

 

E tick no to the first question, leave the rest blank

 

F self explanatory tick yes and fill in if there are dates you cant attend if not tick no

 

G in the big box write “please see attached section G”

 

H leave blank

 

I sign and date etc

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

Link to post
Share on other sites

Other Information

 

Section G

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 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

 

 

 

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 together with proof of service

© notices of assignment together with proofs of service

(d) the deed of assignment shall be brought to the hearing

(e) 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 small claims 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).

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

Link to post
Share on other sites

CCM, Thank you, thank you absolutely brilliant. I like it, I like it! Had read GhostDebts thread and was going to use this in section G

"On the xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to file a full and complete defence against the case from the claimant. A copy is enclosed for the court's reference.

(Proof of postage and confirmation of delivery is available)

 

To date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a litigant in person I respectfully request the court to enforce this request for information, and, if the court considers it appropriate, the issue of an "unless" order to ensure the proceedings are not delayed further"

as didnt know what else I needed to cover! Your response really is very comprehensive, and wow, it really socks it to them. Really appreciate it, thank you for all your effort and hard work, really had not expected so much help, Ace.

Thanks to everyone for their help and input, will keep you posted. :-)

Link to post
Share on other sites

Hi folks,

 

I'm in court with HC+CL this week and I am looking for examples of vexatious litigation by them

 

For this, I include any of the following:

 

1) The infamous "we have gained judgment" (when they havent) letter - the more examples of this the better

 

2) Any examples of lack of compliance with court orders, for example -

 

a) failure by HC/CL to enter an AQ by the time stated by the court

 

b) failure to comply with disclosure where a court has ordered it

 

c) failure to show in court for hearing

 

3) any examples of their claims being struck out by the court for the above and other issues

 

4) any examples (I think this covers most people) where they started a court claim less than 10 days after the date of the first "we own this account" letter they sent you

 

 

If I can get as manay examples of this as possible I'm hoping to get a judge to consider a vexatious litigant order, preventing them from carrying on this farce against us and others

 

As you can see, I am a long term ember of CAG and I am sure many long term members would guarantee my authenticity

 

I make this point because if you are willing, I would require the details above, plus

 

i) the court the action took place at

 

ii) the claim number

 

If anyone knows of others that are not on this thread but have had the issues, could you please ask them to view this and consider replying?

 

 

I would ask that anyone who is prepared to pass details does so via PM

 

Thanks all

omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

Link to post
Share on other sites

  • 2 weeks later...

Hi All,

 

Update on what is happening: Friday I recieved a General Form of Judgement or Order from the Court as below:

 

"Before District Judge XXX sitting at XXX County Court

 

Upon reading the court file

IT IS ORDERED THAT

 

The claim be stayed as it makes no serious attempt to comply with CPR 16.4 (1) by setting out a concise statement of the facts (Stylised particulars do not constitute compliance)

 

The Claimant must amend, or substitute its particulars of claim setting out the Claimant's case in plan English and file and serve them by 4.00pm on XX April 2009 and in default, the claim be struct out without further notice.

 

If the above order is complied with the Defenedant must file and serve an amended defence in accordance with CPR 16.5 setting out its case in plain English

 

Dated XX April 2009"

 

Is there anything I need to do/prepare for in the meantime??

 

All help very much appreciated

 

Thankyou

 

ChasedbyAgencies

Link to post
Share on other sites

Hmmmm.... the judge is pi%%ed with them for the poor POC, and with you for good measure for not putting the defence in plain english:)

 

So basically we go back a couple of steps, and start again from when you get the new amended POC

 

Shout when you do, i will help you with the new defence

 

How much longer have they got to file the POC

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...