Court Claim for O/draft from Nthmtn (CCBC)

[r&b]

Does this reply go far enough or could I could I get a bit more aggressive with it?

Im unsure if I really want to make application for disclosure, given that they are being so obstructive. which beggars the question as to why they are being so?

 

any ideas?

 

 

 

Dear Sir,

Thank you for your letter of xx May 2009 in reply to my second request for information under CPR18 in order to defend the above claim.

Your letter does not address any part of my request save for the issue regarding the accounts conforming to the Consumer Credit Act 1974.

As I stated in my letter of xx May 2009 (the CPR18 reminder) I am unable to fully respond to your clients claim without the information requested. You are in this latest letter, refusing me access to such information, therefore being obstructive to the resolution of this case and preventing me from filing a proper defence.

I ask for the third and final time that you provide me with the required documents as set out in two previous letters. I have for clarity included copies of both letters. Might I remind you once again that I am seeking disclosure under Civil Procedure Rules. To make my position clear, I do not require any further information as to the relevance of the Consumer Credit Act 1974 with regard to this claim, but do require a definitive answer to all other requests within my previous letters. Should you not conform once again within 14 days of receipt, I shall be making application to the Court for such disclosure.

Might I also remind your client that I have previously received a completely unsatisfactory answer to my Subject Access Request under the Data Protection Act 1985, dated xx xx xxxx, in that I have only received information with regard to an alleged credit card account with themselves. I require that they revisit my request and furnish me with the full compliment of the data which they hold in regard to myself. Should they fail to do so, I shall be reporting them to the OFT, TS , Information Commissioner and the FSA.

I refuse to withdraw my defence and find your claim for Summary Judgment completely unfounded and shall dispute it should you go ahead. I deem my defence sufficient given the sparse information I have been given to respond to this claim

I shall be including this and your letter of xx xx 2009, in which you informed me that you will automatically be granted judgment against me upon application to the Court, in any papers to be put before a District Judge should this case reach that point.

I look forward to your reply within the given timeframe.

 

Yours Faithfully

Edited May 13, 2009 by r&b

[r&b]

would this letter enough to head off an application for summary judgment, or are there other ways to go about it?

[r&b]

got the 6 years of statements thru yest so will find out any charges this wekend. still no sign of DN/TN if no one has any better thoughts i ll amend the above letter for the statements n get it sent early next week.

[r&b]

as expected reclaimed charges inc interest amount to a poultry £1300ish.

 

is there any claim on excessive overdraft interest? (straw clutching here)

 

any ideas about staving off the summary judgment with the above letter?

 

i think i need to attack the DN/TN or lack of it except on their file (as in one of the previous letters) and proof of service.....any ideas here im unsure as its to do with a bank account overdraft, not credit agreement on a card/loan.

cheers

[r&b]

bump

[r&b]

im wondering whether to throw a curve ball in the letter and seek summary judgment myself.....

 

Grounds for summary judgment

CPR24.2

 

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue; or

 

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

 

 

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

 

(Rule 3.4 makes provision for the court to strike out(GL) a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)

 

practice direction:

1.3

An application for summary judgment under rule 24.2 may be based on:

(1) a point of law (including a question of construction of a document),

 

(2) the evidence which can reasonably be expected to be available at trial or the lack of it, or

 

(3) a combination of these.

 

 

they are not providing me with relevant docs, have admitted that only have a copy of DN on file and no proof of service....do i need to show more effort in obtaining them (already sent reminder to 31.18 rqst and sent SAR previously) or can i go ahead n threaten them with SJ in the above letter too? am i playing with fire and potentially gettin on wrong side of judge by taking this route?

 

any opinions welcome?

[r&b]

right sending this in the morning, decided against pursuing SJ:

Dear Sir,

Thank you for your letter of XX May 2009 in reply to my second request for information under CPR18 in order to defend the above claim. Your letter does not address any part of my request save for the issue regarding the accounts conforming to the Consumer Credit Act 1974.

As stated in my letter of XX April 2009 (the CPR18 reminder) I am unable to fully respond to your clients claim without the information requested. By ignoring my requests, you are denying me access to such information, therefore being obstructive to the resolution of this case and preventing me from filing a proper defence. I ask for the third and final time that you provide me with the required documentation as set out in two previous letters. I have for clarity included copies of both letters. Might I remind you once again that I am seeking disclosure under Civil Procedure Rules. To make my position clear, I do not require any further information as to the relevance of the Consumer Credit Act 1974 with regard to this claim, but do require a definitive answer to all other requests within my previous letters. Should you not conform once again within 14 days of receipt of this letter, I shall be making application to the Court for such disclosure.

Might I also remind your client that I have previously received a completely unsatisfactory response to my Subject Access Request under the Data Protection Act 1998, dated XX February 2009. I require that they revisit my request and furnish me with the full complement of the data which they hold in regard to myself. Should they fail to do so, I shall hold them in breach of such request and I shall be reporting them to the Office of Fair Trading, Information Commissioner, Trading Standards and The Financial Services Authority, without further notice.

I refuse your request to withdraw my defence and find your claim for Summary Judgment completely unfounded and shall dispute it should you go ahead. I deem my defence sufficient given the sparse information I have been given to respond to this claim.

I shall be including this and your letter of XX May 2009, in which you informed me that you will automatically be granted judgment against me upon application to the Court, in any papers to be put before a District Judge should this case reach that point.

I look forward to your reply within the given timeframe

Yours Faithfully

r&b

[r&b]

anyone know if it will show on the MCOL that the case has been stayed due to no reply from the other side or do i have to phone the court to find out? its not showing at mom but shud be stayed unless their reply is tied up in the court system.

[r&b]

well ive received nothing for disclosure.... but AQ landed on the doorstep yesterday, so above post becomes obsolete.

next stop disclosure application i guess...more expense.... followed by completion of AQ.

will have to look back over the whole thing at the weekend.

 

added: actually just found post 150 from IGNM in the thread below for reference so dont need disc appl.

http://www.consumeractiongroup.co.uk/forum/legal-issues/192837-help-please-court-papers-8.html

Edited June 13, 2009 by r&b
added

[r&b]

EDITED POST 68/69

 

 

listing questionnaires - pre trial checklist (PR 28.5)

procedure explained here for ref:

https://hughjamesonline.secureclient.co.uk/hughjames/?event=base:article&node=A76076B75920D76676

Edited June 19, 2009 by r&b
added:

[r&b]

edited Below Posts 68/69

Edited June 19, 2009 by r&b

[r&b]

little bump if anyone can help with the AQ and draft directions in last couple posts thanks

[citizenB]

Sorry, I am unable to offer any assistance, just giving your thread a little nudge

[r&b]

cheers CB

thought id add a small summary to save reading the whole thread if anyone can help with the AQ:

 

this debt is an overdraft of arnd the £20k this limit was increased (agst my wishes) to take account of unpaid cred card amounts (£600ish), as i also have a cred card acc with same bk.

 

POC:

 

http://i615.photobucket.com/albums/tt231/robntanya/LLOYDSODRAFTPOC.jpg

 

CPR18 sent

 

replies to my CPR18 rqst:

http://i615.photobucket.com/albums/tt231/robntanya/Lloyds3118reply1.jpg

http://i615.photobucket.com/albums/tt231/robntanya/Lloyds3118reply2.jpg

 

also recvd 6 yrs of statements after much complaining.

the charges on the account amount to abt £1300 without interest.

 

submitted defence on post #28

 

CPR18 reminder sent 5/4/09 post #43.

 

letter recvd:

http://i615.photobucket.com/albums/tt231/robntanya/LLOYDSENFJDGMTletter-1.jpg

 

my reply post #48

 

reply to CPR18 reminder:

http://i615.photobucket.com/albums/tt231/robntanya/LLOYDSSCMletter.jpg

 

my reply post #57

 

the upshot is that i have only recvd statements for my CPR18 rqsts and lengthy explanations as to why the CCA1974 doesnt apply to overdrafts. no DN save for we have a record of it being sent on file so thatll do, in fact admit that a copy is not retained by the bank in the first reply to my CPR18. no TN or any other docs they will be relying on.

 

i think that covers most of it. any help on posts 60 & 61 for the AQ much appreciated.

cheers r&b

Edited June 16, 2009 by r&b

[r&b]

little bump for any night owls

thanks r&b

[r&b]

anyone got an opinion on the AQ ive got here posts 60/61 or would PTs version be more appropriate obviously changing the credit agreement bit to cover an overdraft:

 

http://consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

[questioning]

anyone got an opinion on the AQ Ive got here posts 60/61 or would PTs version be more appropriate obviously changing the credit agreement bit to cover an overdraft:

 

Directions for N150 or N149 Allocation questionnaire - The Consumer Forums

 

Hi r&b,

PT's AQ seems straight forward so personally I would go with that one.

 

Just a couple of points picked up from reading other AQ's.......

In the sec. I, other information; You could add add that you are a LIP,

 

In the draft directions to be specific I would name the doc's you require and ask for the originals to be bought to the hearing.

*Default notice

*Termination notice.

* The terms and condiitions of the overdraft agreement

*Any other documents to be relied upon.

 

 

I don't know if you have ref. to this case, Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005)

clarifies the position of overdrafts and the CCA.

[r&b]

thanks Q....from reading that, i take it u mean why the CCA barely applies to overdrafts and that its no use in defence?

 

 

taking ur advice and restructuring here:

 

 

Draft Order for Directions

 

 

 

 

 

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

• True original copies of any Default Notice served on the Defendant compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended
  
• Proof of service of the aforementioned Default Notices.
  
• True original copies of any Termination Notices served on the Defendant.
  
• Proof of service of the afoementioned Termination Notice.
  
• Full statements of account for the entire duration of said account to show the breakdown of the amounts claimed and how they have come about.
  
• Full breakdown of any charges on the account be they for collection or otherwise.
  
• All originals of the documents mentioned herein to be brought to any hearing for inspection
  
• Copies of any statement or other document relied upon by the Claimant
  

The Defendant has made every effort to gain access to these documents, which are vital to the Claimants case, with the use of Civil Procedure Rule part 18 disclosure requests (attached) of xx xx xx/xx xx xx/xx xx xx

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
  

have i missed anth out there for an overdraft?

Edited June 20, 2009 by r&b

[r&b]

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

 

 

 

 

N150 Allocation Questionnaire

 

 

 

 

 

Section I - 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. I have made repeated attempts under CPR18 (5th April 2009, 6th May 2009 and 21st May 2009). 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.

 

It is respectfully requested this case be allocated to the fast track. It is a case however, that 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

 

PLUS THIS BIT:

 

Please find the following attached to this allocation questionnaire;

 

1) Section I - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008.

 

 

anything need adding/changing?

Edited June 19, 2009 by r&b

[questioning]

thanks Q....from reading that, i take it u mean why the CCA barely applies to overdrafts and that its no use in defence?

yep its a sad fact, this clarifies the matter quite well, especially as I often see people referring to CCA and overdrafts and saying its a grey area.

 

 

taking ur advice and restructuring here:

 

 

Draft Order for Directions

 

 

 

 

 

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

• True original copies of any Default Notice served on the Defendant compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended
  
• Proof of service of the aforementioned Default Notices.
  
• True original copies of any Termination Notices served on the Defendant.
  
• Proof of service of the afoementioned Termination Notice.
  
• Full statements of account to show the breakdown of the amounts claimed.
  
• Full breakdown of any charges on the account for collection or otherwise.
  
• Copies of any statement or other document relied upon by the Claimant
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant has made every effort to gain access to these documents, which are vital to the Claimants case, with the use of Civil Procedure Rule part 18 disclosure requests (attached) of xx xx xx/xx xx xx/xx xx xx

 

 

 

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
  

have i missed anth out there for an overdraft?

Comparing this to other AQ's it looks fine to me,

[r&b]

thanks Q,

im wondering if i can add smth abt bringing orginals to court as well?

[questioning]

thanks Q,

im wondering if i can add smth abt bringing orginals to court as well?

 

Yes i certainly would, I mentioned it in my post #67.

In the directions you need to add "The original documents must be brought to the hearing".

That way they need to disclose true copies of the originals (which is what you'v asked for) and also bring the originals to a hearing, what they disclose must be the same as what they bring to the hearing. You are making that very clear and making a lot of work for them and as you know they will need to get it right.

 

This might be nit picking and I have never had to file an AQ but what i have noticed on other AQ's is that people tend to put this part ..... "If the Claimant fails to comply with this order, the claim will be struck out without further order." right at the end of the directions.

where you are asking for statements you could add "covering the entire duration of the alleged agreement."

Edited June 20, 2009 by questioning
added the last bit.

[r&b]

Yes i certainly would, I mentioned it in my post #67.

In the directions you need to add "The original documents must be brought to the hearing".

That way they need to disclose true copies of the originals (which is what you'v asked for) and also bring the originals to a hearing, what they disclose must be the same as what they bring to the hearing. You are making that very clear and making a lot of work for them and as you know they will need to get it right.

yes thanks have included it now.

 

This might be nit picking and I have never had to file an AQ but what i have noticed on other AQ's is that people tend to put this part ..... "If the Claimant fails to comply with this order, the claim will be struck out without further order." right at the end of the directions.

it was there just not at the end which makes far more sense.

 

 

where you are asking for statements you could add "covering the entire duration of the alleged agreement."

i like that 23 years...hmm...they ll do well if comply with that....lol

 

 

as usual many thanks Q

[questioning]

well, 23 years that might just be pushing your luck then.

Looks like its ready,

Hopefully the DJ will give those directions.

Edited June 20, 2009 by questioning

[r&b]

ok little twist in the tail here, a Summary Judgment application waiting for me when i got home..

the hearing is on the 1st July..nice, oh and they state that under cpr? (cant remember off hand) i have to file and serve anything written that i seek to rely on, 7 days before the hearing ie my CPR18 rqst. the bundle still has no DN or TN attached just witness statement from some dept head and loads of account statements...

..i ll have a look thru the bundle and post up the important bits...

if anyone has any immediate thoughts id be grateful