Creation Consumer Finance claimform - old Fridge loan - struck out - they tried again - **WON+COSTS TWICE**

[I've got no money]

You do it ASAP - the idea is to have it dealt with as soon as you possibly can

[intree]

ok thanks, Please can you just advise do I have to supply a draft order and instructions or just make the request on the form from the website and enclose the £75.00 fee?

 

Thanks

[I've got no money]

You use the N244 which you can complete online BUT you have to print it out. Where you're only applying for a short order you don't need to do a draft order just make sure that you're N244 makes clear what you are asking for:-

1. An Order that they comply with the Order of (date of the Order) in that they (say what they have got to do) within 14 days in deafult of which the claim shall be struck out without further Order

2. Costs

[intree]

Hi IGNM

 

Thanks for your advice........I have just been speaking to the court and they advised me that even if the N244 is put in, the Case will still be heard on the date listed, they also advised I would need to pay a further £40.00 to have the date changed as they do not change dates ones they are set.

 

I informed them that I was dissapointed that the Court were not taking note of the letters being sent to them and that the claim stands even though the otherside have made no formal response - I was then advised that as they had issued the claim, it can not be struck out for non compliance, as they need to attend court and defend it.

 

I have spoken to my wife, who is the claimant in this matter and she wants to just leave matters as they are and hope that they will discontinue, if not we will attend court, she does not feel that we should waste £75.00 and then a further £40.00 to change the dates, just to get the same result (THE HEARING AS NOTED), I can understand her point of view, especially as the claimant has no - Valid default notice, and have supplied a Multiple agreement, but no prescribed terms etc etc........

 

Lastly - I would appreciate further input as this may not be that last step before we give up on them.

[I've got no money]

I'm afraid that the advice from the court is wrong. I think that they have misunderstood - I haven't suggested applying to vacate the hearing - incidentally if you wanted to make more than one application on an N244 and one of the applications was an application to adjourn a trial fixture - there would only be one fee of £75 - not £75 plus £40. I think if you made a freestanding application on its' own to adjourn the trial then there may be a fee of £40 BUT that is not what I'm suggesting.

 

What you are thinking about doing is making an application for an Order that they either provide the information requested or are struck out.

 

If the Order is made and they don't comply the claim will be struck out and the hearing automatically vacated, without any application because the claim no longer exists. if the order is made and they comply then the hearing will go ahead as planned.

 

There is more than enough time between now and August to allow you to apply for an Order - to get the Order made and for them to be struck out for non compliance

 

Have a look at the Civil Procedure Rules - which deal with striking out the claim - specifically CPR 3.4 (2)©

 

PART 3 - THE COURT’S CASE MANAGEMENT POWERS - Ministry of Justice

[intree]

Thanks again IGNM - We have decided to take your advice and put in the application for strike out if the order is not complied with, as soon as possible.

 

I will keep you updated in the progress of this matter for further advice and support.

 

Thanks

 

Hi IGNM just been doing the Form

 

Please can you advise what I put in question # 4 to 10 as I dont have a statement but can include the defence again or the ORDER - just hope this works now;-)

 

This is what I have put in the Order box;-

 

1. An Order that the Claimants comply with the Order of 31 March 2009 in that they file a reply to the amended defence within 14 days in default of which the claim shall be struck out without further Order.

 

2. The Court Hearing of 3 August 2009 be re-listed after the claimants response is filed, if the Claimants do not comply with the Order within 14 days then the claim be struck out and the Hearing cancelled.

 

2. Costs in this claim.

[I've got no money]

Hang on a second - I've just been re-reading your thread

 

Can I just check - Did you ever do the CPR letter that I suggested?

 

Can I ask has there been any exchange of witness statements, have you received any documents from the other side at all

 

intree said:

This is what I have put in the Order box;-

 

1. An Order that the Claimants comply with the Order of 31 March 2009 in that they file a reply to the amended defence within 14 days in default of which the claim shall be struck out without further Order.

 

2. Further Directions

 

3. The Costs of and occassioned by this application be paid by the Claimant in any event

 

I've amended your suggested order

 

The N244

 

4 - No

5 - with a hearing

6 - 15 mins - time estimate not agreed

7 - Trial Date - (insert date)

8 - District Judge

9 - All parties

10 - Evidence set out in the box below - then in the box below explain why you need the information

[intree]

Thanks for your information - will post the details out tomorrow..will keep update posted.

 

Hi just to add - yes did do the CPR letter but was not sent anything back from the claimants, they have not provided any witness statements and neither did I as the Hearing was adjourned by the Order of 31 March 2009 to be relisted after their response.

 

Thats as far as it went to be honest.

 

This is my statement in the box :

 

The Claimant has not issued a compliant Default notice which is enforceable under the CCA 1974, they have also failed to provide the agreement which contains the prescribed terms for the Insurance element in the Multiple agreement they have issued on 14 February 2009. They also failed to file the Allocation Questionairre and submitted this 3 months after they issued the claim on 9 February 2009, when this should have been submitted by 30 October 2008.

They have then failed to respond to the Order dated 31 March 2009, given by District Judge Stamenkovick within the time allowed, accordingly there has been a failure to comply with a court order.

The information is vital for the Claim to go to a Hearing and will assist in the Overiding objective of the Court as it appears from the Claimants actions to date that they have little regard for any order, procedure or request which has been made for information about their claim.

 

THIS COVER LETTER HAS BEEN SENT TO THE COURT WITH 2 COPIES OF THE APPLICATION AND FEE OF£75.00 - HOPE IT WORKS

For the Attention of the Case manager

 

 

 

Dear Sir

 

Further to the order made by District Judge Stamenkovick sitting at the Leicester County Court on 30 March 2009

 

I note that the claimant has now failed to submit the reply to the amended defence supporting their case despite being ordered to do so.

 

The claimant has had every opportunity to file such documentation and the size of the organisation, it is not unreasonable for them to have filed such documentation on time at the first opportunity, they have since been given a second chance to file documents by order of District Judge Stamenkovick and they appear to have ignored the Honourable Judges orders and have failed to comply as directed

 

The result of this failure is that I am unable to file a fully particularised defence to the claimants claim or prepare witness statements or call further evidence which is required for the Hearing, without the documentation which the claimant relies upon, I am unable to answer their allegations as set out in their particulars and I am placed at a severe disadvantage, as I am a Litigant in person

 

Therefore, I would request that the pursuant to CPR part 3.4, 2 © that the claim is struck out without further order as detailed in the attached Application Notice N244, dated 2 June 2009, I have attached the appropriate fee of £75.00 which I understand is payable for the Application together with 2 copies of the Application, one for the Court and one for the Claimants.

 

Please can you let me have all notices and documents as they are issued to or by the Claimants so as to prevent any delays?

 

 

 

[Gazza112]

subbing with interest

[intree]

Please can anyone advise what the next step could be in this matter and could the court refuse to give a strike out, despite the claimants refusing to obey a court order and CPR requests, and failing to provide witness statements etc etc, especially as the Court on 30 May 2009, listed the claim for a Hearing on 3rd August 2009.

 

I am very worried about this as they have not given any directions in the order they sent and just ignored the fact that the claimants have not responded to the order?

 

I have sent in a N244 with the above documents and the Court order dated 30 March 2009 but have little hope that it will be a favourable response from the court!!

[I've got no money]

I wouldn't expect an automatic strike out - I'd have thought that there will be a hearing to decide on your application - then what is likely to happen is an Unless Order

 

Can I ask if you've applied for Orders in respect of their failure to comply with your CPR requests

[intree]

Hi IGNM

 

No I never asked for Orders against no response for CPR,

 

Order was for giving the information as requested in the letter below which the solicitors failed to respond to, so they also now failed to respond to the order, but the claim stays live........this is annoyng:

 

REQUEST FOR INFORMATION: Termination of contract/Default Notice under CCA 1974

I can confirm that I am still awaiting the information requested Under the CPR procedure dated 5 March 2009, unless I get a response with the information requested, within 14 days of that fax I will notify the Court that you are frustrating the proceedings and hindering my defence.

In order for me to investigate this matter further and obtain written statements for the Court Hearing, from the Consumer Credit Counseling who is the Debt Management Charity, dealing with this matter, please confirm:

• When you or your clients contacted them to resolve this matter,
  
• The name of the person you or your clients spoke to
  
• What the outcome was of the agreement. discussion
  

Please also provide an explanation of why you have ignored the OFT guidelines (which was sent to you) on debt collection in this matter, I confirm that under the relevant act, this agreement was made after April 2006 therefore you should have followed the above guidelines, before proceeding with court action.

I would also be obliged, if you can indicate what the current arrears are, as according to your fax dated 20 October 2008 (default notice dated, 02 September 2008 and under the terms of “the agreement”, (which you supplied on the 14 February 2009) I should have been offered a rebate to settle the account early, this has not been offered to me, as a default notice was never sent by your clients, as a result I have suffered financial loss and harassment by you.

 

 

I now refer to your letter dated 10 February 2009, under cover of which, you supplied (some of the documents I had been requesting since August 2008) from your clients, in particular the following:

2. Consumer Credit Act Notice dated 2 September 2008;

• Please indicate how this notice was served on me from Ireland, on the 02 September 2008.
  
• Please indicate who served this notice on me, with proof of posting.
  
• What date the Default Notice became effective, after service on me; under the CCA 1974.
  
• Please also advise if a copy of this Default Notice has been sent to the court.
  

3. Termination notice dated 24 September 2008,

• I believe that this Multiple agreement (which includes Insurance) was terminated as a result of the above Default Notice, (which was never sent or received) but in line with the contents of the faxed Default Notice, this letter was sent by you on behalf of your clients; Creation consumer Finance Ltd of Belfast.
  

I must now accept that you and your clients have terminated the agreement without consultation with me in any way. Please provide me a written response within 7 days from the date of this fax; should you fail to do this, I will have no option but to send this request to the Court, as this information will assist in the overriding objective of the Court.

Moreover, I need to obtain written statements for the Hearing and without this information from you this can not be done. When this matter proceeds to Court, I will be seeking a costs order to be made against your clients and wasted costs order against your firm.

 

 

 

Yours sincerely

[I've got no money]

Did the Court ever expressly order them to reply to this letter?

[intree]

Hi IGNM

 

Yes the Court were submitted the above via a amended defence (below) this is what they were Ordered to respond to by 14 April 2009, to which they have failed, but this was ignored by anothe DJ and a hearing set again, hence the n244 application,

 

The order was as follows:

 

Genaral Form of Judgement or Order

 

30 March 2009

 

Before DJ Stamenkovich sitting at XXXXXXX COUNTY COURT

 

Upon reading the Court File

 

IT IS ORDERED THAT

 

1. The Hearing of 8 May 2009 is adjourned to a date to be fixed.

2.Claimant to file a reply to amended defence by 15 April 2009.

 

Date March 30 2009.

 

Here is the defence which was submitted with the help of CAG members :

 

Defence

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

1. It is denied that the alleged agreement is in the prescribed format as required under the Consumer Credit act 1974

1.1. It is averred that this document is a multiple agreement as defined in s18 (1) and that it falls foul of s18 (2) as the insurance aspect is included in the total credit and total charge for credit

1.2. [s18 (2) where part of an agreement falls within subsection (1) that part shall be treated for the purposes of this Act as a separate agreement.

 

1.3. The insurance aspect of the agreement is a linked transaction as specified in s19 of the CCA and being a transaction financed under credit it is subject to the provisions of s60, s61 and s127(3) in its own right.

 

1.4. Furthermore each separate part of the agreement must contain the prescribed terms for each part. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia:

1.4.1 A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

2. The Defendant did not receive any notification that Open & Direct Retail Services Limited changed its name to Creation Finance Limited. The Defendant puts the Claimant to strict proof of when notification of this was sent.

3. The Defendant denies receiving a Default and puts the Claimant to strict proof that the said document in the prescribed format was delivered to the Defendant.

3.1 The Defendant received a copy of a Default Notice not on letter headed paper on 14 February 2009. Two days before the court hearing of 16 February 2009. The Defendant was not given an opportunity to settle the outstanding sums.

3.2 Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. Default notice was served on 2 September 2008 for remedy by 16 September 2008 I therefore put the claimant to strict proof as to the date of service of the said document

 

4 The Defendant denies the allegation that she failed to comply:

4.1 The notice was never received.

4.2 Payments are continued to be paid under a Debt Management Plan and were being accepted by Open & Direct, Creation Consumer Finance and now Greenhalghs Solicitors since February 2007.

4.3 The Claimant’s Termination of the agreement was in reliance of an invalid default notice accordingly the contract was terminated unlawfully.

5. It is denied that the Claimant is entitled to recover interest at a rate of 32.4% per annum on unpaid sums. The Defendant avers the rate of interest is penal and unenforceable at law.

The UTCCR 1999 states

 

Effect of unfair terms

(1) an unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

 

(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.

6. It is denied that the Claimant can claim its legal costs as termination of contract is unlawful and the Defendant has corresponded with the Claimant to resolve the matter out of court but has received no response (see attached).

I believe the above statement to be true and factual

 

 

Signed..........................................

[popeye1]

Still not complied with court orders then,not good for them,they were given olenty of time still havent complied with court orders,

you need the docs that they were ordered by the court to supply as yet they have not complied with court orders.

Keep reminding them ,if you get a good J he will take a dim view of this,good luck

[I've got no money]

The important thing about any sort of Order or indeed CPR request is to enforce it.

 

IMO if you have a normal Order that hasn't been complied with - you apply for an Unless Order on an N244 (and claim costs)

 

If there is a CPR request that hasn't been complied with then you do a chasing letter give them an extra 7 days - then you apply for an Order on an N244

 

If you do it pro-actively in every case the other side can't cope...

[intree]

So hopefully - I have now followed procedure and made my defence against them quite clear a DJ should provide the order and costs asked for in the N244, I just hope they do this soon.

 

Thanks for the advice.

[popeye1]

hows it going intree

[intree]

Hi Popeye1

 

Just received this from the court after my application - can not paste up but the contents of the order are~:

 

Before DJ XXXXXXXX Sitting at xxxxxxx County Court

 

IT IS ORDERED THAT

 

Upon the courts own motion. the Court has made this Order of its own initiative without a hearing, If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it.

 

1. Unless by 1/7/09, the claimant do not comply with the order dated 31/3/09, the claim will bestruck out without further order.

 

2.The Hearing on 3/8/09 be vacated if the claimant has not complied.

 

date 15 June 2009

 

 

I just hope this is now the end with these muppets as they ahve made my life hell.

 

Thanks to IGNM for his support to date, and all the Caggers for the posts which haev helpmed me to this stage.

[Bookworm]

Looks like the N244 did the trick then and got the judge to pay attention. Good.

 

They literally have been given 7 days to obey the court order or get their a*se kicked out of court. That should put the cat amongst the pigeons and no mistake.

[popeye1]

I reallly hope they get their ***** kicked out of court for you,good luck

[intree]

UPDATE

 

Called the court, they advised they have not received anything from the claimants, but will have to wait till tomorrow to see what turns up.

 

If nothing does - then it will be struck out - if they do then it goes to a Hearing.

 

1 more day then......................

[I've got no money]

Is the order 4pm tomorrow...

[intree]

Hi IGNM

 

Thank you for your help to date, the order just says before 1 July 2009, but the lady in Court said its 4 pm tomorrow, so will call again Thursday am.

[intree]

called court at 4.55pm they advised that the claimants have not filed a response, However I have now been advised to wait a further 3 weeks before they can confirm this for definate, as they have a backlog of work from 9 June 2009.

 

I have however been advised that there is no log of any response which has recorded and is uptodate to 4.30 today. So will now have to wait till the paper logs are done.

 

I will then hopefuly be able to claim for the expenses etc.