Marlin/Mortimer CCJ HFC Marbles Card - Set Aside Help **WON plus Costs**

[Spamalot]

Thanks R&B all comments are really appreciated...

 

I don't know if I have confused things by sending £75 'cause I've only just found this...

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50.pdf

 

P.5 states that for an order it should be £40 and as far as I'm aware my application was for an Order to produce docs, therefore DJ has an extra £35 to spend on his Hob Nobs!

 

I shall definitely ring the court and take advice...I am happy to go ahead with the duff docs I've got so far because in all honesty they don't have much in their favour...

 

My main concern is that I'll get to the hearing and they'll adjourn it for the docs to be produced because 'the other side weren't aware I wanted them!'

 

ad infinitum.

[foolishgirl]

Oh, now I get it spam Sorry been reading too many threads to keep track.

 

I didn't realise you'd sent in an N244 for disclsoure aswell. Suspect the court doesn't realise that this is the case either, therefore a phone call on Mon. is def. the best way forward.

[Spamalot]

Having read the x20 thread again, particularly this post

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1771008.html

 

I'm wondering if perhaps I should have sent a draft order in with my application for the order of disclosure of Docs.

 

I intend to go to the court rather than phone tomorrow and take some of the paperwork with me.

 

Does anyone think taking a draft order would be a good thing as well?

 

Thanks Spam.

[foolishgirl]

A draft order is usually acceptable & even welcomed by some DJs as it makes life easier for them.

[Spamalot]

Ok Here goes,

 

Draft Order

 

1 Unless by 4:00pm on xx/xx/xxxx the Claimant complies with a request made by the Defendant on (What date do I put here? is it the date of my first written request or the date of this application?)pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely,

 

1. The Agreement,

2. The Assignment (s),

3. The termination Notice

 

With regards to the following..

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

 

How much of the above is relevant to my situation and what do I need to use/ lose bearing in mind the judgement is already in place?

 

Thanks again, Spam.

[Spamalot]

Ok, In the abscence of advice so far I've cobbled together a Draft Order using x20s Thread and Satterthwaites overturned CCJ an CO and come up with this.

 

Claim No. xxxxxxxx

 

 

 

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely

 

1.The Agreement

2. The Assignment(s)

3. The Termination Notice.

 

[1]The judgment in this case shall stand set aside without further or other order of the court,

 

[2] The costs of the Defendant's application to set aside, to include the costs of the Defendant's application leading to this order, shall be paid by the claimant to the Defendant to be assessed by the court pursuant to the provisions of the Litigants in Person (Costs and Expenses) Act 1975 by detailed assessment proceedings and

 

[3] All further proceedings in this case save for detailed assessment proceedings shall be stayed with liberty to apply within one calendar month of the date of this order whereafter in default of an application for an order to lift the stay, the claim shall stand struck out.

 

Please feel free to add any comments ;-)

[fedupwithdebt2009]

Hi Spam, am still keeping tabs on your case....no update as YET on mine!!!

 

May the force be with you........

 

fedup xx

[r&b]

well spam my ph call didnt cast much light but she thinks we will be using the hour to sort out if he deems disclosure necessary or not if so we ll fight on if not he ll make a decision....

[Spamalot]

Well.......

 

My trip to the court didn't enlighten me much either!

 

Took all the paperwork with me, explained to the nice lady what my problem was i.e I asked for an order and they gave me a hearing I've paid £75 twice for the same hearing etc etc.

She agreed that it was strange when I had explained my situation and went off to look for my file..... ages later and a big Q forming behind me she came back and said she couldn't find it but she'd spoken to another court officer who said it had been in with the DJ and he/she said to list it for hearing...

 

Nice Lady did intimate that it looked like the judge hadn't actually read it properly without actually saying so and said to either write in with my query or ring them up in a few days when my file should have turned up!...

 

My personal opinion is that the DJ should have taken more water with it that day and I shall be writing a letter requesting that the order be granted or to return my money 'cause I'm not paying twice for the same /thing!!!

[r&b]

WHEN u win it will be them payin twice spam...

[jon888999]

Subbing, having my own battle with these muppets.

[Spamalot]

Mini Update..

 

The postman brought me a present this morning....

 

A letter from Mortimer Clarke saying ' Please find enclosed a copy of you Statement of Account as requested.

 

We hope this is of assistance to you.' (their grammer.. not mine )

 

MarblesApplicationForm-1.jpg picture by Spamalot_bucket - Photobucket

 

Don't know what anyone else thinks, but it looks like an application form to me.

 

I'm not sure if this is what they are claiming to be my agreement as it has arrived under the guise of a 'Statement of account' and they haven't said 'Here is a copy of your agreement'

 

If this is their idea of an agreement there doesn't appear to be any T&C's etc so I'm guessing it wouldn't be enforceable. ;-)

 

Oh well, onwards and upwards and please excuse the dripping sarcasm... I just don't know why I ever let this shower frighten me!

 

Spam.

Edited June 16, 2009 by Spamalot
oops

[r&b]

not sure if thats a ph number left on there spam?

looks like an appl form to me too spam even tho it does have credit agreement at the top and as IGNM has espoused before in skeleton arguments under the contra proferentum rule any ambiguity should fall against the party that seeks to rely on it....

[Spamalot]

not sure if thats a ph number left on there spam? And there's me harping on about their mistakes! . Thanks... edited

looks like an appl form to me too spam even tho it does have credit agreement at the top and as IGNM has espoused before in skeleton arguments under the contra proferentum rule any ambiguity should fall against the party that seeks to rely on it....

 

Hmm sounds good to me.. But is this what they are relying on?

 

As I said, they sent this with a covering letter saying it was a 'Statement of account' so I've got nothing yet that says 'Here is your agreement as requested'. Then I could safely (with a modicum of trepidation) say they were relying on my application form.

 

 

It would be an added bonus if that is the case as quite frankly everything else they have supplied so far has been disasterous!

 

Think I may ring the court today to see if my other little problem regards to disclosure is getting anywhere.

 

Spam.

[Spamalot]

I have decided to take the bull by the horns and send this letter with a copy of what they sent me and see what they reply with....

 

As per usual all input welcomed.

 

Dear Sir/ Madam,

 

I am writing with reference to your letter dated 15.6.09 and its enclosure.

It states that there is a copy of your ‘Statement of account’ enclosed but as you can see that is not the case.

 

I am wondering if the enclosure is in fact your response to my five requests for a copy of the agreement on which you will rely in court.

 

I would be grateful if you can clarify this point by confirmation in writing so I may update my records.

 

Yours Faithfully

 

Spam.

[r&b]

I have decided to take the bull by the horns and send this letter with a copy of what they sent me and see what they reply with....

 

As per usual all input welcomed.

 

Dear Sir/ Madam,

 

I am writing with reference to your letter dated 15.6.09 and its enclosure.

It states that there is a copy of your ‘Statement of account’ enclosed but clearly (as you can see) that is not the case.

 

(I am wondering if) As the document in question contains reference to The Consumer Credit Act, I shall take the enclosure, a copy of which I have attached to avoid any doubt, as in fact your response to my five requests for a copy of the agreement pertaining to this case on which you will rely in court.

 

(I would be grateful if you can clarify this point by)I shall deem this as fact and amend my records accordingly, unless I receive alternative confirmation in writing. ( so I may update my records.)

 

Yours Faithfully

 

Spam.

 

just trying to pin em down a bit spam. dont know if u agree?

[Spamalot]

just trying to pin em down a bit spam. dont know if u agree?

 

Looks good to me... I shall amend accordingly and get that off in the post today.. Thanks.

 

BTW I spoke to the court today and it looks as though my request for disclosure is still going to be heard after my Set Aside hearing.

 

I did query the fact that I really wanted to see the docs before the hearing as I needed them for my defence, and that if the judgement doesn't get set aside then I've wasted money and the courts time, but she said the judge wants to deal with it all at the same time and give directions and I probably won't have to come back to court after that.

 

Not quite sure how to take that....

 

Spam.

[r&b]

mmm im not sure wot these judges are thinking? havent got the same one have we? lol...

trub is if we keep harping on abt discolsure this n that we risk getting under his wig and i think things are delicately balanced enuff without that...so i for one am just gonna go with the flow n make objections at the time if i feel its not going my way.

[Spamalot]

Yes, I'm of the same opinion, I shall bide my time now collect what I can, get my case together and hope for the best...

 

only another 10 weeks!

[Spamalot]

It's not much, but I've just noticed that The POC states 'By a credit agreement in writing between HFC and Spam dated 15.11.99. etc.'

 

Having looked at the copy of the application form ... It's difficult to tell if I've put 5.11.99. or 15.11.99 against my sig but it is then signed by HFC on what looks like 3.12.99. so I'm guessing this is actually what they are going to use as my agreement.... I wonder where the T&C's are.

[Spamalot]

Mini Update..

 

To date I have not received anything from MC with regards to the Application form they sent me so I think this is what they may be relying on in court with regards to my 'Agreement'

 

No wonder they rushed it through Nothampton CCBC!

 

Seriously... I cannot see any prescribed terms on the copy they have sent and I am therefore reasonably comfortable that the 'agreement' is unenforceable.

 

Please correct me if I am wrong!!!

 

Also, is there anyone out there that has a seen a marbles agreement circa 1999/2000 who knows whether the T&C's could be on the back?

 

I have only been sent the one side of the document and have no clue what is on the other and don't want them to turn up with the original on the day and make me look an idiot...

 

It looks like it's in a whole folder full of application forms and they have only photocopied the front..

 

Comments please.

 

Thanks Spam.

Edited June 26, 2009 by Spamalot

[r&b]

hi spam,

sure uve seen some of this b4 but 42man has just put this up here may help galvanise the prescribed term issue:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/199150-sb100-hfc-default-compliant-4.html#post2251137

[foolishgirl]

 

Seriously... I cannot see any prescribed terms on the copy they have sent and I am therefore reasonably comfortable that the 'agreement' is unenforceable.

 

Please correct me if I am wrong!!!

 

If this is the copy you posted further up the thread, there are no prescribed terms.

Also, is there anyone out there that has a seen a marbles agreement circa 1999/2000 who knows whether the T&C's could be on the back?

 

Don't know- never had a marbles card but put Marbles or Goldfish in the search for others who may have agreements.

 

I have only been sent the one side of the document and have no clue what is on the other and don't want them to turn up with the original on the day and make me look an idiot...

 

You won't - they will. You have asked for true copies of cca & t&cs & they haven't sent them. If they turn up on the day with anything & expect to offer it in court, object & ask for an adjournment (even a short one) to enable you to assess the doc.

 

 

FG

[Spamalot]

Belated Thank yous FG.

 

Righty ho,

 

I need to start getting things finalised for my set aside hearing next month so I can be clear on what I have and how I proceed.

 

Firstly, I have established that there are unlawful charges on the account.. should I reclaim them first or wait until after the court hearing ( I completely forgot about them in my excitement over the assignment discrepencies and I was confused as to whether I could claim on an agreement that I was challenging )?

 

Secondly, will I hear anything more from the court with regards to procedure or is this it now ?..Do I just turn up and go ahead with what I've got?

 

 

Thirdly, I believe I have now received everything I am going to get in relation to my 'agreement' etc. and I would like some help in getting a proper draft defence together etc.

 

So, any help and advice would be sincerely welcomed.

 

Thanks,

Spam.

[Spamalot]

Hello out there..

 

Any advice re the above post please.

 

Spam.