OH v BLS/LTSB

[cymruambyth]

Hi everyone, I'm now looking at my N149

 

A Yes

B No

C Yes

D 0 or 1, do I count if I go with OH?

E N

F XXXX

H N

G I was thinking of using pt's excellent post..........

 

 

 

N149 Allocation Questionnaire

 

 

 

Section G - other information

 

1. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

 

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

 

 

2. 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 this document must be disclosed before this case can progress any further

 

 

 

 

 

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations

• 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

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

If the Defendant fails to comply with this order, the Defence will be struck out without further order

Edited August 26, 2009 by cymruambyth

[cymruambyth]

Hi does anyone hve any coments please?

[citizenB]

Hi does anyone hve any coments please?

 

Add to the Default notice paragraph,

 

"and any proof of posting"

 

Other than that, if it contains everything you want the otherside to produce then that looks good.

 

BTW, in the Witnesses, if you are going to give evidence then I think you need to stick [ 1 ] in the box. If you arent and it is just OH's case then put NONE.

 

Dont forget to head each of the draft direction/orders with all the details of the court, claim number, defendant and claimant

[cymruambyth]

thank you citb, just as you know **** are so slippery.......

[citizenB]

thank you citb, just as you know **** are so slippery.......

 

 

like an eel

[cymruambyth]

N149 Allocation Questionnaire

 

 

 

 

 

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations

• 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

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

If the Defendant fails to comply with this order, the Defence will be struck out without further order

 

I am right that I do not need to ask for these as it is LTSB claiming?

Thank you

[citizenB]

I am right that I do not need to ask for these as it is LTSB claiming?

Thank you

 

Correct, as it is the original Creditor who is the claimant then it wont have been assigned.

[cymruambyth]

Hi everyone, I'm now looking at my N149

 

 

N149 Allocation Questionnaire

 

 

 

Section G - other information

 

1. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

 

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

 

 

2. 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 this document must be disclosed before this case can progress any further quote]

 

Thank you citb, hopefully my last qustion about this part..........

 

They have supplied an illegible copy. Does this mean they have failed to supply th document or should I add something else

[citizenB]

Right, well I dont seem to be able to find anything that is suitable, so how about this...

 

 

Dear Sirs,

 

I am in receipt of your letter dated (whenever).

 

 

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. All you have sent is a pre-contractual application form, which is barely legible and therefore not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557), your attention is drawn to regulation 2 (1) which sets out how copy documents must be presented.

 

 

"Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the ."

 

From what I can see, the document you have provided does not contain any prescribed terms. Nor have any historic terms and conditions been supplied.

 

I am therefore unable to assess if I have any liability as claimed by your client.

 

Yours faithfully,

 

Short and sweet.

 

This is the double sided reply to my CCA request.

http://i399.photobucket.com/albums/pp74/cymru_1/scan0022.jpg

http://i399.photobucket.com/albums/pp74/cymru_1/scan0023.jpg

 

Okey dokey, I brought forward some previous posts and the copy of what they claim is your agreement.

 

I would say you need to include the following quote..

 

 

Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

After all, how can you see if the prescribed terms are there if you are unable to read the document properly ??

[citizenB]

You might also find something of interest in the links provided in the post linked below.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2394247.html

 

HTH

[cymruambyth]

Thank you, how does this seem?

 

Section G - other information

 

1. It is requested that the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimant’s claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and failing to comply with the requirements of Practice Direction 16 in so far that it fails to comply with point 7.3 which states:

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

In addition, the court’s attention is drawn to Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) which states:

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

The claimant’s failure to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit Act 1974 and the Consumer Credit (Agreement) Regulations made under the act. The consequences of the document failing to comply with the regulations and the act can render the agreement unenforceable even by the honourable court.

 

 

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2.

 

 

 

2. 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’s 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 the 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.

 

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 this document must be disclosed before this case can progress any further.

[citizenB]

Looks ok to me, I would prefer for you to have someone like CCM, andyorch, X20, IGNM have a look but none of them seem to be online at the moment.

 

I have asked site team to look in on you.

 

When do you need to have this in by ?

[cymruambyth]

Needs posting tomorrow:eek: I was ready ........... and then I started thinking which is always dangerous.

[citizenB]

Ok, right well have a look at a "section H" (same as your section G) which Paul completed for Viano.. for an illegible document.

 

The post number is 164 in the following link

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/119668-lba-optima-leagal-services-17.html#post1387890

 

 

You might want to have a read of the whole thread, which is very interesting. posts 5, 39, 75 and 114 are relevant to you even though Viano's was a barclaycard. You will be pleased to learn that Viano has a SUCCESS sticker

 

 

 

 

 

N150 Allocation Questionnaire

 

Section 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;

 

The claimant has failed to date to supply a clearly legible compliant copy of the credit agreement which they seek to rely upon as the basis of this claim

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.

 

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

 

 

HTH

[cymruambyth]

Thank you as ever citb.

I'm now ready with about 3 section Gs:confused: I'll print and post SD tomorrow afternoon, so I'll wait to see if anyone returns from their holidays and has anything to add.

This thinking should be banned, it's bad for my nerves:D

[citizenB]

Thank you as ever citb.

I'm now ready with about 3 section Gs:confused: I'll print and post SD tomorrow afternoon, so I'll wait to see if anyone returns from their holidays and has anything to add.

This thinking should be banned, it's bad for my nerves

 

I'll agree with that

[cymruambyth]

Heard from [problem]

'application form ...actually became a credit agreement when it was signed by both you and the bank'

'agreement would have been clear and legible at the time you signed it.......it is your signature and ....the banks'

'We understand some of the agreement may be illegible, however, this is the result of its age and the way the agreement would have been stored on the bank's microfiche system.'

attached still illegible copy plus copy of t& cs; however the clauses referred to on poc are not the correct ones on the document

 

'amend your dfence or write to the court withdrawing your defence and admiting to the balance outstanding'

Edited September 4, 2009 by cymruambyth
typos

[r&b]

Heard from [problem]

'application form ...actually became a credit agreement when it was signed by both you and the bank'

and prescribed terms are in invisible ink, or coded in the small print?

'agreement would have been clear anlegible at the time you signed it.......it is your signature and ....the banks'

do they refer you to the ****, Talking Out Of Your Backside manual 1997 s4 ss.17(a) which states: " grasp at straws at every available opportunity".

'We understand some of the agreement may be illegible, however, this is the result of its age and the way the agreement would have been stored on the bank's microfiche system.'

definitely your fault they dont know how to store legal documentation upon which they may need rely on in litigatation at a future date!!!

attached still illegible copy plus copy of t& cs; however th clauses referred too on poc are not the correct ones on the document

why bother with the correct clauses if you havent bothered with all the above?

perhaps you could get James Bond in as an expert witness to decipher it all for you....would add nicely to the costs.

'amend your dfence or write to the court withdrawing your defence and admiting to the balance outstanding'

i can see where they are coming from here.......................MARS....

 

they dont change their tactics do they?

[cymruambyth]

Hi r&b, they certainly seem to be helping my defence:D

[cymruambyth]

does anyone have any comments on post 161 as I need to get it printed and posted.

[cymruambyth]

Final draft unless anyone has any suggestions. Please and thank you

 

This amended draft has now been posted and deleted, so [problem] can read their own copy and not this one :D:D:shock:

Edited September 1, 2009 by cymruambyth

[cymruambyth]

Heard from [problem]

'application form ...actually became a credit agreement when it was signed by both you and the bank'

'agreement would have been clear and legible at the time you signed it.......it is your signature and ....the banks'

'We understand some of the agreement may be illegible, however, this is the result of its age and the way the agreement would have been stored on the bank's microfiche system.'

attached still illegible copy plus copy of t& cs; however the clauses referred to on poc are not the correct ones on the document

 

'amend your defence or write to the court withdrawing your defence and admiting to the balance outstanding'

 

I think they are talking a load of baloney; I was going to ignore this and just keep a copy for my court bundle and print any legislation I can find on witness statements and heresay. Does anyone think it's worth wsating postage on them?

Edited September 4, 2009 by cymruambyth
typos

[citizenB]

I think they are talking a load of baloney; I was going to ignore this and just keep a copy for my court bundle and print any legislation I can find on witness statements and heresay. Does anyone think it's worth wsating postage on them?

 

IMHO, no it is not worth wasting the postage. They are trying it on.

[cymruambyth]

Thanks citb, one other question.......

'application form ...actually became a credit agreement when it was signed by both you and the bank'

Is this correct?

THank you

[citizenB]

Thanks citb, one other question.......

'application form ...actually became a credit agreement when it was signed by both you and the bank'

Is this correct?

THank you

 

Not one I can answer, I'm afraid.. hopefully someone will pop in and advise:D