County court claim help please

[atwozee]

Don’t worry Fedupwith – you will get help filling in your AQ – I’ve got one to fill in as well – I’ve seen a few threads with relevant info – I will post you a link but won’t be till tomorrow – plenty of time – you will basically be confirming that you cannot defend properly until they send you copies of the Agreement, Default Notice and NoA.

[atwozee]

Take a look at this link and the rest of the thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/168747-court-papers-filing-defence-4.html#post1965148

[shammy36]

Subbing

[fedupwithdebt2009]

Hi thanx for reply.....will read through stuff later....I really want to win this cos they threatened me with acharging order if they get judgement!! Thats something I really dont want on my property, specially as things are today (property prices etc)...also 3K on claim is just interest!!!!! Thats what makes me soooo mad!!! If they had gone for amount as a loan it would be easy to contest, (loan was agreed over phone ) as no CCA is held as its 12 years old debt.....but they have been crafty making out its an overdraft, as that does not come under CCA does it. Good job I kept all my bank statements...ever!!!! lol...cos on statements it clearly shows the words "BANK LOAN transfered in" and "bank loan repayment insurence"

Edited March 13, 2009 by fedupwithdebt2009
add info

[atwozee]

After reading the info on those links I completed my AQ no problem – Pt’s a hero along with many others – In your case you need to ask for a copy of the loan agreement (state the account number if necessary) and any information regarding its settlement/termination/default because it is intrinsic to your defence – you also need copies of all statements to verify the amount claimed is accurate.

As I said earlier in the thread if they have been stupid enough to transfer a balance on a regulated loan into an overdraft without obtaining a signed modifying agreement that is compliant with the CCA 1974 then they are going to have a hard time justifying their claim.

If you need more help with the AQ then shout up.

[fedupwithdebt2009]

Hi just trying to sort out my AQ and wondered if this is ok for the attatched directions and if not would somebody mind editing it for me thanks :-

 

Between

************* - Claimant

and

 

xxxxxxxxxx - Defendant

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order file and serve the following:

 

• 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.
  
• Copies of any statement or other document relied upon
  

Also:-

I put the claimant to strict proof that the bank account listed in the POC is indeed a HSBC current account and not a First Direct account to which we have all statements relating to said bank account number xxxxxxxxx

Also:-

I put the claimant to strict proof that the alleged debt is in fact an overdraft and not the bank loan, as listed in said statements, namely statement number xxx dated xxxx

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
  

[fedupwithdebt2009]

Bump

[atwozee]

Hi just trying to sort out my AQ and wondered if this is ok for the attatched directions and if not would somebody mind editing it for me thanks :-

 

Between

 

 

************* - Claimant

 

 

 

 

 

 

and

 

 

 

 

 

 

 

 

xxxxxxxxxx - Defendant

 

 

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

The Claimant shall within 14 days of service of this order file and serve the following:

 

• 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.
  
• Copies of all statements for the duration of the account in order to verify the amount claimed is both accurate and lawful.
  
• Copies of any other document to be relied upon by the Claimant.
  

Also:-

I put the claimant to strict proof that the bank account listed in the POC is indeed a HSBC current account and not a First Direct account to which we have all statements relating to said bank account number xxxxxxxxx

 

Also:-

 

I put the claimant to strict proof that the alleged debt is in fact an overdraft and not the bank loan, as listed in said statements, namely statement number xxx dated xxxx

 

 

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
  

 

Blue = modified

Red = Save that for witness statement which comes later.

 

Under other information I suggest you let the court know that the claimant hasn't complied with any previous request for information - attach a copy of the letter you sent to the claimant.

[fedupwithdebt2009]

Thank you for that...I did wonder if I should put that or not...will get itsorted but its not due till 27th so am going to post claiments copy on 25th by recorded and actually take my copy into local court on 26th. Do we get a reciept as proof we have handed it in?

[fedupwithdebt2009]

Hi would you be able to edit the following for me......its what I have taken from another thread.

 

 

XXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N149 / 150 **Allocation Questionnaire

 

Section G / H **- 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 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 this document must be disclosed before this case can progress any further

[atwozee]

This is what I came up with - can't remember if yours is fast track (over 5k and under 15k) or small claims (under 5k)

 

Edit to suit

 

Claimant (edit) -v- Defendant (edit)

Claim No: xxxxxxxx

 

 

N150 Allocation Questionnaire

 

 

Section I

Other Information

 

 

As a consequence of the Claimants refusal to comply with the Defendants previous request for information which is necessary to submit a fully particularised defence and 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 documents requested in the draft order, I am at a disadvantage and am unable to serve a proper defence or counterclaim. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as non-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 and 63, section 127(4) precludes the court from making an enforcement order.

 

 

 

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). Failure of a default notice to be accurate not only invalidates the default notice (Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1 9 9 8) but is an 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)

 

 

 

Copies of statements are necessary to establish the alleged balance on the account, to establish the percentage of the balance caused by unfair terms under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding on the defendant, and to establish whether or not the defendant is indeed indebted to the claimant to any degree. My previous request for this necessary information has been ignored.

 

 

 

These documents are also necessary to determine the true balance on the alleged account at the time of default and termination. If the balance quoted on the default notice should be inaccurate to a degree greater than de minimis, either by the levying of unlawful charges deemed unfair under the Unfair Terms in Consumer Contracts Regulations 1999 or any other reason, then the default notice is rendered invalid as per Woodchester v Swayne & Co [1998] EWCA Civ 1209.

 

 

 

Its is respectfully requested this case be allocated to the small claims/fast track (edit accordingly), 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.

[fedupwithdebt2009]

Thats brill thankyou!!!! Its fast tract as over £5K so have edited to suit. In the section (I).... I wont fit all that in so do I put see attatched document or do I have to try and fit it all in?? Sorry if this is really obvious but it is monday morning!!!

Edited March 16, 2009 by fedupwithdebt2009

[atwozee]

No need to be sorry – you must ask if you are unsure – even if it is obvious.

Just write - *Please see other information attached*

Print off onto a separate piece of paper along with the directions and the copy of the CPR letter you sent and staple it all together.

[fedupwithdebt2009]

Ok thats brill thanks....just tried to add to your reputation Atwozee but it says I have to spread it about a bit more before I can add to yours again!!!!

[fedupwithdebt2009]

Hi delivered my AQ to court yesterday. In section C where I put see attached info I put the following :-

 

Section c Pre-action Protocols

 

This case is not covered by any approved pre-action protocol. I have requested the claimant provide information in my CPR Part 18 request, please see attached letter to claiment, but to date the claimant has not provided the documents I require to investigate this claim, please see attached letter from claiment in responce to my request for information. This clearly shows that the claiment instigated legal proceedings whilst not in pocession of any doccumentation to back up the alledged amount claimed.

So I attached a copy of their " sorry we dont have that information and have applied to our client for it blah de blah......I just thought its only fair to warn the judge as early as possible that they are playing silly beggers here!!!!!!

[fedupwithdebt2009]

Hi again

 

After hand delivering my AQ on thursady (date to be in by was friday) I have today recieved an order from the court saying that unless the claiment files an AQ by 6th april it will be struck out without further order, also if we dont file AQ by same date defense will be struck out without further order.

 

Now I have a court stamped reciept for our copies and a witness to me handing them in....has anyone any ideas what they are playing at?? Does it mean claiment has NOT filed AQ but then the last date was friday 27th not thursday 26th and that is the date the order was made.......

 

confused? I am!!

[creditcardmug]

If you have filed yours by the due date you have nothing to worry about, check with the court a few days after 6th april to find out whether the claimant has filed theirs

[fedupwithdebt2009]

Hi CCM thanks for answering....but they have included with the order another set of AQ forms for us to fill in......

[fedupwithdebt2009]

Does that mean that we have to fill another set in and take them into court again??

 

Also is there a possibility that they have "lost" the first AQ??

[fedupwithdebt2009]

bump

[creditcardmug]

Ok you will have to type up exactly what it says on the order

[fedupwithdebt2009]

Ok thanks

 

1. The court will consider a request for a stay upon the filing of AQ providing the AQ contain a request

 

2. Unless the claiment do by 16.00 hours on 6th April 2009 file an AQ the claim do stand struck out without further order of the court

 

3. Unless the both defendents do by 16.00 on 6th April 2009 file an AQ the defence do stand struck out without further order of the court.

 

The date on the new AQ is 6th April but it was 27th march on the one I handed in on thursday 26th march...and I got a reciept stamped by court so surely they have our copies....???

[creditcardmug]

Seems to me your AQ wasnt in the hands of the judge when he made that order (even though it was in the court building), so i think your AQ stands, and you dont need to file another, if it was me, i would go to the court office and ask their advice, explaining the above

[fedupwithdebt2009]

Thanks, yes I thought I would ring and ask them tomorrow first as to why this has been ordered, and also fill in the new AQ as I have all the stuff I need to do it.....and then take that and my reciect (the guy photocopied the front cover of both AQ and date stamped them) into court and see what happens.( I even took a friend as a witness to me handing it in!!!!!) See what i dont understand is that It did not have to be in untill 27th and I took it in on 26th so I was on time.....What do you have to do to get a copy in front of a judge????

 

Also am tempted to put "No" instead of "yes" in answer to question "do you want a stay"....what do you think?/

[fedupwithdebt2009]

Seems to me your AQ wasnt in the hands of the judge when he made that order (even though it was in the court building), so i think your AQ stands, and you dont need to file another, if it was me, i would go to the court office and ask their advice, explaining the above

 

Hi just got back from county court. Showed guy the order I recieved yesterday and asked him what it meant. He said he had no idea why the judge had not looked at my AQ, (it was him I handed it into last week) when the last day for handing it in was friday last week....so I was in time(!!!!!!!!!!!!!) but he said it might not have been processed in time(!!!!!!!!!!!!!!!!!!!!!!) and anyway the case had gone before the judge on 24th(!!!!!!!!!!!!!!!!!!!!!!!!)

 

So W.T.F did the AQ have a date on it then(?????????????????)

 

Anyway...I had filled in the SECOND AQ this morning before I went so I handed him that one and got a reciept for that (!!!!!!!!!!!!!!!!!!!!!!)

 

He said claiment had not filed their AQ in to date and if they dont by 4pm on monday then its struck out. (everythings crossed)

 

I am left feeling very nervous cos it makes us look like we have not handed the AQ in on time when I clearly did (I attached reciept for 1st AQ to 2nd AQ so hopefully it WILL get seen by the judge at SOME point(!!!!!!!!!!!!!!!!!!!!)

 

Whats the flippin point in us sticking to dates if the court does what it wants(????????!!!!????????)

 

FUWD