cupcake68 Vs Virgin **DISCONTINUED**

[cupcake68]

Hi

 

I have spoken to the court today and Aplins contacted the court within their 28 day deadline which is why it has been transferred to my local.

 

So I do have to fill in the AQ.

 

I take it I somehow have to request via the court all supporting evidence before going to court as they are ignoring me?

 

Thanks

 

Cupcake

[Gallahad]

bump

[Dotty50]

Cupcake,

 

You might be better if you get this thread moved to the legal forum for more assistance.

[maroondevo52]

Hi, Cupcake.

 

I'll move this thread to Legal Issues.(as advised by Dotty).

 

Regards.

 

Scott.

[cupcake68]

Thanks guys!

[cupcake68]

Hi Guys

 

Could someone please advise me of my next move with this case please?

 

It is my first (of many!!) court summons and I really don't know what I should be doing!!

 

Thank you

 

Cupcake

[Gallahad]

Bump

[gh2008]

Could you post a 'thread summary' please I just haven't got time to read the whole thread.

In the summary if you can also provide links or list posts with the account details/ agreement any T&Cs you have any S78 requests you have made CPR requests etc

and their POC your defence etc

 

What happened to your Egg case in the end ??

[cupcake68]

Hi GH

 

Thanks for looking! I will get on with it straight away!

 

Egg have until the end of the month to contact the court after receiving my defence and if not the case will be stayed.

 

Cupcake

[cupcake68]

*CCA'd Virgin in March 2009

 

*11th April 09 - Rec'd chase letter from Aegis EC Virgin pictures by cupcake62 - Photobucket (turns out Aegis don't have a licence in UK or registered with FSA)

 

*April 2009 - Sent the account in dispute letter to Virgin.

 

*8th May 2009 - Another letter from Aegis

 

*18th May 2009 - Postcard from Aegis telling me they will be calling on Saturday

 

*13th June 2009 - CCA rec'd Covering letter admits it is an unclear copy! ME VIRGIN CCA rec 130609 pictures by cupcake62 - Photobucket

 

Advise given by Diddydicky

 

"it has to be "easily legible" if it is not then write back and point this out and tell them they are in default until such time as they send you an Easily legible document "

 

"is also headed "credit agreement regulated by etc etc "

 

if it is a credit card it HAS to say

 

"credit CARD agreement etc etc"

 

immediately improperly executed"

 

"and it looks like a cut and paste jobby"

 

*June 09 - DD Advised this reply...

 

I refer to my CCA request of xxxxxxx 2009

 

I must now write to you as follows:-.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On*xxxxxxxx 2009*I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. The time limit for you to comply was xxxxxxxx 2009 ( 2 working days + 12 - use a calender

 

You have failed to comply with my request, and as such the account entered default on*XXXXXXXXX 2009

 

On XXXXXX 2009 you sent to me an unreadable document purporting to comply with my request which did not comply your obligations under the consumer credit act sect 78 ..

 

You have by virtue of not supplying the requested documents within 30 days also committed an offence.

 

The document that you are obliged to send me is a*true copy*of the*executed agreement*that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.*

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on* debt collectors*which state under the title*Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8*

 

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

 

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

 

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed Breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

 

Please reply within 14 days with your intentions to resolve this matter which is now a formal complaint I will take this to be the end of this matter .

 

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

 

Yours sincerely

 

*15th July 2009 - Notice of Legal action rec'd from Optima

 

*Sent the Letter to solicitors threatening legal action when account in dispute.

 

*11th Nov 2009 - DN rec'd from MBNA (not Virgin) http://s683.photobucket.com/albums/vv199/cupcake62/EC%20Virgin/EC%20MBNA%20DN%20rec%20111109/ Dated 9th November sent UK Mail.

[cupcake68]

*23rd Nov 09 - Letter rec Virgin sold debt to Direct Legal

 

*3rd Dec 09 - Letter from DLC - they now own my debt

 

*21st Dec 09 - Another letter from DLC on behalf of Hillesden Securities they intend taking legal action

 

*4th Jan 10 - Letter from Aplins They are going to issue court proceedings unless I pay

 

*24th June 10 - Letter from Aplins "Further to our recent letter we are now issuing a Claim against you in the Northampton county court and will be seekingto obtain a judgement against you for payment of the whole amount forthwith.

 

This does not mean we expect you to pay the full amount straightaway. The reason we are seeking to obtain a forthwith judgement is to enable us to apply for a Charging Order on your property simply to obtain some form of security for the large debt.

 

We would like to make it quite clear to you that if we are successful in obtaining the Charging Order there is absolutely no intention to seek to enforce it by applying for an order for sale. We merely wish to register the Charging Order so that if you sell the property at some time in the future there will hopefully be sufficient equity to enable this debt to be paid.

 

In the meantime, once we have obtained the Charging Order, we will be happy to accept payment at a rate which you can realistically afford."

 

*26th June - Court papers arrive

 

POC "The Claimant's claim against the defendant is for the amount due and unpaid as at today's date under a regulated running monthly credit account"

 

*27th June 10 - This letter sent on the advice of Cerberusalert

 

date ****NOTICE UNDER Civil Procedure RULES***

 

reference

 

 

 

 

 

Dear Sir/Madam,

 

 

This is in acknowledgement of your letter dated ................and also of .............The contents of which have been duly noted.

Further to you stressing that county court proceedings will be actioned by yourselves should I fail to make contact/stressing that proccedings are about to be commenced in regard to alleged sums outstanding and alleged owed by me on the above account,I remind you of Civil Procedure rules protocols. Nevertheless in my response to your letter please be advised of the following.

 

 

I put forward that you now have a requirement to provide me with;

 

 

1) A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. Please note that a "true copy" as defined by the Consumer Credit Act will not be acceptable in this case, and a copy of the actual executed agreement, including signature, is required.

 

2) All records you hold on me relevant to this case, including but not limited to

 

1. A transcript of all transactions, including charges, fees, interest, payments and both the amounts of credit and any repayments made to the account.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

3. Where there has been any event in the account history over this period that has required manual intervention by any person, disclosure of any indication or notes that have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the account held by me with........... is required.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you sent to me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial Breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998.

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I make this request to ensure that each party has equal footings which can allow action to proceed speedily fairly and without undue costs or waste of courts time,as defined within Pre-action Practice Directions -Protocols 4.6 of the Civil Procedures Rules.

I will give you 14 days to respond with the above,failure to comply will result in a complaint being made to the Court./In addition to the fos for any breaches of OFT and CCA codes.This includes breaches as a result of initiating a Country Court claim where failing to provide or produce documents make litigation improper..

Specifically this relates to one or any number of the following;

 

* demand any payment on the account, nor am I obliged to offer any payment to you.

* add any further interest or charges to the account.

* pass/sell the account or outstanding balance to any third party.

* register any information in respect of the account with any of the credit reference agencies.

* issue a default notice related to the account.

 

Furthermore,I reserve my right to make a copy of this letter available for inspection to the Court and Financial/Consumer regulators should you fail to comply with this request.

I await your response,and should you need further clarification on any of the above points,then I suggest that you direct them to your legal department.

 

 

 

Yours Faithfully/Sincerely

No response from Aplins

*15th July 10 - DD advised this letter

 

"i would write to alpens and tell them that their particulars of claim are vague and insufficient for you to prepare a defence, give them 7 days to re submit the claim failing which your intention will be to apply to the court to have the claim struck out

 

if they dont reply in 7 days then file an embarrased defence of just a couple of lines along the lines quoted above

 

ie: you cannot prepare a defence as the particulars of claim are vague and you do not know the case you have to answer and that the claimant has failed to respond to a request for further particulars "

 

*27th July 10 - Still no response so filed this defence as per DD

 

Claim Number:

 

Between

 

MBNA Europe Bank Limited Claimant

 

And

 

Defendant

 

Defence

 

1. I, ......................... ......................... ........, am the Defendant in this action and make the following statement as my defence to the claim made by MBNA Bank Europe Ltd.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants' Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

 

4. The Claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Court’s attention to the following matters:

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written contracts referred to; the method the Claimant calculated any outstanding sums due, or any other matters necessary to substantiate the Claimant’s claim.

 

b) A copy of the purported written contracts that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim for

 

5 . On XXJuly 2010 the Defendant submitted requests under (CPR 18 and CPR 31.14) via First Class Recorded Delivery for copies of the agreements, copies of all statements since inception of the accounts, in order to assess if the sum claimed is accurate and any other documentation that the Claimant is relying upon in pursuit of this claim. The claimant did not respond

.

On XXJuly 2010 the Defendant submitted a further requests under (CPR 18 and CPR 31.14) via First Class Recorded Delivery for copies of the agreements, copies of all statements since inception of the accounts, in order to assess if the sum claimed is accurate and any other documentation that the Claimant is relying upon in pursuit of this claim. The claimant again did not respond.

 

6. I respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.

 

Statement of Truth

 

I, ......................... ............, believe the above statement to be true and factual.

 

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

 

 

*21st July 10 - Another letter sent to APlins asking them to resubmit giving full details.

 

I received confirmation from court that they rec my defence and that Aplins had 28 days from receipt to contact court or case would be stayed.

 

Still nothing from APlins.

 

*3rd September 10 - Rec notification from court that case had been transferred to my local and I have to get AQ back by 20th Sept.

 

SO this is where I'm at!

 

I hope this all makes sense!!

 

Cupcake

[citizenB]

cupcake are you just looking for assistance in completing the AQ ? Is it an N149 or N150. It will tell you at the bottom of the form.

 

Is the following exactly what was on the Particulars of Claim ??

 

 

 

 

POC "The Claimant's claim against the defendant is for the amount due and unpaid as at today's date under a regulated running monthly credit account"

 

Can you just advise if the claim amount is above or below £5,000.

[cupcake68]

Hi CB

 

Thank you for your time.

 

Yes I am asking for advice with the AQ, it is an N150 and it is for just over £15000 !!! And yes, that is all the POC states.

 

I have no idea how I should answer their questions when they still haven't replied to my request for more information on the claim?

 

Thanks again

 

Cupcake

[citizenB]

Ok, so this is likely to go to Fast Track. It has been suggested that you go for a strike out rather than submit the AQ. I am going to try and find someone with more knowledge of this procedure for you.

[cupcake68]

Thanks so much CB

 

I am really worried about submitting the AQ and then finding out I have shot myself in the foot!!

 

Thanks again

 

Cupcake

[Gallahad]

Come on guys it seems this lady is not receiving the level of assistance we have come to expect from CAG

G

[cupcake68]

Thanks Gallahad

 

I am really grateful for everone's help from CAG. I really don't know where I would be now if it weren't for you all!

 

I also appreciate that everyone is busy and time is limited. I have to get this AQ to the court by Monday. I am searching the site trying to find similar cases to this.

 

Ie no response from Claimant to CPR but there always seems to be something a little diferent about it and I am really nervous of doing the wrong thing and it then being too late to rectify.

 

No doubt in time I will be an expert on all this! Lol

 

Thanks again everyone

 

Cupcake

[diddydicky]

thats no lady! - its cupcake:lol:

[diddydicky]

im no expert on AQ's but if you search under AQ's you will find all the info you need to fill it in- it is a procedural document only

[diddydicky]

an example of a completed AQ

 

 

Pre-action protocols are basically the procedures that the parties in a Claim have to follow before a Claim is issued. They can be found as part of the Civil Procedure Rules (CPR). If you google Civil Procedure Rules you can then access them online.

 

Your Directions will depend on what you need from the Claimant to help you compile a Defence. In my case the Claimant has not disclosed all the necessary information I need to prepare a full Defence so my DIRECTIONS are asking for the required information.

 

 

 

 

allocation questionnaire

 

 

Have you sent a copy of this completed form to the other party. Yes

 

 

A. SETTLEMENT

 

YES

 

YES

 

NO

 

 

B. LOCATION OF TRIAL

 

YES

 

Claim already transferred to my local county court .

 

 

 

C. PRE-ACTION PROTOCOLS

 

You are expected to comply with the relevant pre-action protocol.

 

Have you done so? No

 

If No, explain why?

 

This case is not covered by any approved protocol; I have tried to act reasonably in exchanging information and documents relevant to the claim but have had no response from the claimant in this regard.

 

 

 

D. CASE MANAGEMENT INFORMATION

 

What amount of the claim is in dispute? £XX,XXX

 

Applications

Have you made any application(s) in this claim? YES – N244 submitted on 05/02/2010 to ask for Summary Judgement against the claimant pursuant to CPR 24.2 as the claimant has no real prospect of succeeding, as the claimant has failed to comply with the defendant's s.77 request of 30 NOVEMBER 2009, and remains in default of that request and therefore is unable to obtain judgement

 

 

Witnesses

 

Mr Costa All the facts in the case

 

Experts No

 

Track Fast Track

 

If you have indicated a track which would not be the normal track for the claim, please give a brief reason for your choice: See Attached Sheet?

 

CPR Part 26 Case Management-Preliminary Stage states in:

 

26.7(3) The court will not allocate proceedings to a track if the financial value of the claim, assessed by the court under rule 26.8, exceeds the limit for that track unless all the parties consent to the allocation of the claim to that track.

 

If the Claimant is in agreement, the Defendant believes that the case can be allocated to the Fast Track as the facts, law and evidence are not complex. Only the defendant and claimant are involved and the oral evidence is straight forward.

 

 

 

E. TRIAL OR FINAL HEARING

 

How long do you estimate the trial or final hearing will take? 3 Hours

 

Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or hearing?

 

Xxxx xxxxx

 

F. PROPOSED DIRECTIONS

 

Have you attached a list of the directions you think appropriate for the management of the claim? Yes

 

If Yes, have they been agreed with the other party? NO

 

G. COSTS

 

Leave blank

 

H. Fee

 

 

NO

 

I. OTHER INFORMATION

 

Have you attached documents to this questionnaire? YES

 

Have you sent these documents to the other party? YES

 

If Yes, when did they receive them?

 

Do you intend to make any applications in the immediate future? YES

 

If Yes, what for?

 

An order seeking the Claimants compliance with information previously requested.

 

In the space below, set out any other information you consider will help the judge to manage the claim.

 

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.

 

Therefore it stands to reason that this documentation must be disclosed before this case can progress any further.

 

 

 

In the ************* county court

Claim number **********

 

 

 

 

 

 

 

 

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, the original documents to be brought to the hearing

• 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 together with proof of service

• Actual copies of all original statements for the duration of the alleged agreement, used to establish a balance on the claimants Particulars of Claim

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

 

You can hand deliver the aq to your local CC by 4.00pm on the day it is due.

 

I hope this helps.

[Gallahad]

From what CB has posted it would appear it is not about completing the AQ form but how to get the claim struck out.

G

[Gallahad]

Would completing the AQ prevent or make going for a strike out more difficult?

G

[diddydicky]

courts are always very reluctant to strike out claims

 

much better (IMO) to apply via an unless order

 

the AQ gives an opportunity to the defendant to ask the court to make an order as in the example above

[car2403]

I'd be applying for a strike out, personally. Yes, you're unlikely to get one, but shy bairns get nowt and the Court won't do it unless they are asked. Your fallback position will be "in the alternative to the strike out" that they comply with your request for documentation prior to the allocation to track - that will scare the be-jesus out of them, as you can claim costs if it's not allocated to small claims, plus they will know you know your stuff by asking for a SO. Remember that these guys are meant to be the professionals, not you. Hopefully the Court will see your side of things.

 

Completing an AQ is quite straight forward, but submitting a request for a SO is specific to your case - let us know if that's what you want to do, but, given the timescales, you'd want to submit an AQ, with the SO order, I'd say...

[cupcake68]

Thanks guys!

 

That really helps!

 

I was worried about completing it and then finding out I shouldn't have done it at all but applied for a stirke out instead (or maybe something completely different!!)

 

Cupcake