Speedloan claimform **Claim Discontinued - WON!**

[foolishgirl]

As you now know that some of the info you requested is not applicable, you need to submit new draft directions as amended below. Don't forget to set it out correctly with parties, case no, heading etc at the top & complete dates, amend to set aside etc, as necessary. Looking back on your DN, I also think it is set out incorrectly. I'll double check but that would need to be added too.

 

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
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Material evidence that any default notice was mailed to the defendant
  
• 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
  

 

 

Re the N244 I have downloaded and filled in but regarding section 3 what order do I put set aside and the reason above ?

 

The original claim (No: xxxxx) was struck out on order of the court on xxxx after the claimant had refused 2 opportunities to proceed with the claim at that time.

 

The claimant's severely delayed application for reinstatment of this claim is now an abuse of process.

 

I ask because section 10 states what information are you relying on and gives 3 options witness statement/statment of case/evidence set out below.

At that point do I attach my witness statment that I gave to the court previously or do I attach the details you posted previously...

 

It's witness statement & use the one I posted above. Head it accordingly. You also need to enclose copy of your CPR request(s). Did you send any reminders on that? If so they need to go in too) All enclosures need to be referred to in your WS as Encl A, B etc.... & have a seperate piece of paper attached to each as below (thanks to pt)

 

 

On behalf of: Defendant

Witness: [Initials and surname]

Number: [1st] [2nd]

Exhibits: [“DEF1”]

Date:

IN THE XXX COUNTY COURT Claim No:

 

 

 

BETWEEN

[________]

Claimant

and

[________]

Defendant

 

EXHIBIT “DEF1”

This is the exhibit marked “DEF1” referred to in the [1st] witness statement of [D E Fern] dated the day of 200

[foolishgirl]

Yes, I think your DN is not printed in the correct format.

 

THEY HAVE DONE IT LIKE THIS

 

WHEN IT SHOULD BE LIKE THIS

 

OR IT SHOULD BE LIKE THIS

 

You therefore need to add another para between 4 & 5 of the WS:

 

I also note that the copy of the Default Notice sent to me by the claimant does not comply with Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. This renders the Default Notice invalid. (Encl xxx)

 

You also need to submit a copy of the DN as an enclosureas in above post.

Edited October 27, 2009 by foolishgirl
addition

[jj69]

Yes, I think your DN is not printed in the correct format.

 

THEY HAVE DONE IT LIKE THIS

 

WHEN IT SHOULD BE LIKE THIS

 

OR IT SHOULD BE LIKE THIS

 

You therefore need to add another para between 4 & 5 of the WS:

 

I also note that the copy of the Default Notice sent to me by the claimant does not comply with Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. This renders the Default Notice invalid. (Encl xxx)

 

You also need to submit a copy of the DN as an enclosureas in above post.

 

Great stuff..should the above LIKE THIS be a link because it is not working for me ?

[foolishgirl]

Great stuff..should the above LIKE THIS be a link because it is not working for me ?

 

No, this is how it should be printed on your DN.

 

Have a look at the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

 

I get the impression from your comments that you haven't really comprehended the principles behind the legislation that you are using & I suggest you put a whole load of research into this jj. IMO it is possible that this will go to a hearing & you MUST fully understand all the implications of the clauses, acts & judgments etc. that you will need to refer to in order to defend this one. It will not be a walkover - you will have to deflect arguments from a solicitor on the other side & maybe have to 'educate' a DJ too.

 

I trust you are aware that I am not legally qualifed & can only offer suggestions based on my limited knowledge & experience. The final decision as to how or what you submit to court is yours alone. Only you know the full facts & only you will be standing in front of a DJ to present them. If you have any doubts about your capability to manage this, I suggest you seek professional advice asap.

[jj69]

No, this is how it should be printed on your DN.

 

Have a look at the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

 

I get the impression from your comments that you haven't really comprehended the principles behind the legislation that you are using & I suggest you put a whole load of research into this jj. IMO it is possible that this will go to a hearing & you MUST fully understand all the implications of the clauses, acts & judgments etc. that you will need to refer to in order to defend this one. It will not be a walkover - you will have to deflect arguments from a solicitor on the other side & maybe have to 'educate' a DJ too.

 

I trust you are aware that I am not legally qualifed & can only offer suggestions based on my limited knowledge & experience. The final decision as to how or what you submit to court is yours alone. Only you know the full facts & only you will be standing in front of a DJ to present them. If you have any doubts about your capability to manage this, I suggest you seek professional advice asap.

 

Hi foolishgirl..I am happy with the assistance given so far it's just putting it in the right format that I require.I am under no impression that this may go further and rests on a key issue such as the default notice and how it is presented.

I have all my documentation together along with the exhibit sheets attached which I am quite confident with.

Basically at this point I'm hoping the Judge will agree and throw it out.

I am taking in all the basic law principles that apply with these requests such as CPR31.14 etc,and although it's a lot to take in I know I have to use these as my argument.

I also have the option of mediation which reluctant to do is another avenue.

[jj69]

No, this is how it should be printed on your DN.

 

Have a look at the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

 

I get the impression from your comments that you haven't really comprehended the principles behind the legislation that you are using & I suggest you put a whole load of research into this jj. IMO it is possible that this will go to a hearing & you MUST fully understand all the implications of the clauses, acts & judgments etc. that you will need to refer to in order to defend this one. It will not be a walkover - you will have to deflect arguments from a solicitor on the other side & maybe have to 'educate' a DJ too.

 

I trust you are aware that I am not legally qualifed & can only offer suggestions based on my limited knowledge & experience. The final decision as to how or what you submit to court is yours alone. Only you know the full facts & only you will be standing in front of a DJ to present them. If you have any doubts about your capability to manage this, I suggest you seek professional advice asap.

 

Foolishgirl thanks again for your help..got the documents in and no fee to pay after speaking to the court clerk and explaining it was a N244 doc...oh well here goes nothing..

[foolishgirl]

Foolishgirl thanks again for your help..got the documents in and no fee to pay after speaking to the court clerk and explaining it was a N244 doc...oh well here goes nothing..

 

Good. At least if you get nowhere, it's cost you nothing but here's hoping...

[jj69]

Good. At least if you get nowhere, it's cost you nothing but here's hoping...

 

Regarding next course of action should I get a letter from the court to say if they have granted set aside ?

[foolishgirl]

Yes, but suggest you phone on 6 Nov to see if claimant has paid fee. If not, you will need to write post haste to ask for strike out again.

[jj69]

Yes, but suggest you phone on 6 Nov to see if claimant has paid fee. If not, you will need to write post haste to ask for strike out again.

 

 

Hi there..letter today saying court date set for 13th Nov for set aside hearing..

Can you just quickly explain will this be with the opposing sides solicitor or as I belive it is just for me to state the reason why and present the faulty DN notice ?

[foolishgirl]

This is definitely a hearing for the set aside is it jj, not a hearing on the original claim?

 

If the former, your case is as I posted earlier:

 

Hi jj

 

They have no case for reinstating - see car's comments in post 162.....

 

.....as per the points you were going to make in your defence eg. no docs etc. provided in response to your CPR (attach copy letter), therefore impossible to calculate the accuracy of the sum of the claim plus the fact that they already had the opportunity to produce any evidence to justify & continue their claim & did not take it. You can also point to the fact that this is a company of professional legal bods (you are just an LIP) - they should have known the procedures & are just attempting to abuse the court system by their application now.

 

You should also put a clause in to the effect that if the court permits reinstatement, it also issues directions on the production of documents. Attach a draft directions for the info you want.

 

 

You will need to take the 'defective' DN & a copy of the CPR31.14 letter you sent.

 

The other side may be there, suspect they may not, but you must read up well on all the law/case law re. DNs beforehand as you may have to argue the point. However if you don't understand any legal jargon that may pass betweeen sol & DJ speak up & ask the DJ to explain. You are a LIP & he should make allowance. Don't be intimdated, just be firm & polite.

 

If the DJ says it must continue to a hearing, ask that he issue directions that the claimant supply statements & proof of DN posting as they have ignored your CPR31 request. Without these docs. you cannot assess if (a) they have a right to bring the claim in the first place - DN & (b) if the amount they have claimed is correct & therefore you would be precluded from issuing a defence.

[jj69]

This is definitely a hearing for the set aside is it jj, not a hearing on the original claim?

 

If the former, your case is as I posted earlier:

 

 

 

 

You will need to take the 'defective' DN & a copy of the CPR31.14 letter you sent.

 

The other side may be there, suspect they may not, but you must read up well on all the law/case law re. DNs beforehand as you may have to argue the point. However if you don't understand any legal jargon that may pass betweeen sol & DJ speak up & ask the DJ to explain. You are a LIP & he should make allowance. Don't be intimdated, just be firm & polite.

 

If the DJ says it must continue to a hearing, ask that he issue directions that the claimant supply statements & proof of DN posting as they have ignored your CPR31 request. Without these docs. you cannot assess if (a) they have a right to bring the claim in the first place - DN & (b) if the amount they have claimed is correct & therefore you would be precluded from issuing a defence.

 

Foolishgirl it is titled Notice of Hearing of application - and the basic jist of letter states hearing for application order to set aside will be on the 13th Nov and will take 15mins.The hearing with Speedloan is 21st Dec...

Speedloan still have to pay fee by 5th Nov..also the mediation people have been on to me about a telephone meeting with the OC.

So my set aside argument will be the fact that non compliance of 31.14 with the defective DN and the fact the case will be non winnable from Speedloans point of view due to lack of correct documentation.I will require the correct documents as requested in my 31.14.

I assume I can also take along the struck out letter from last time.

[foolishgirl]

Foolishgirl it is titled Notice of Hearing of application - and the basic jist of letter states hearing for application order to set aside will be on the 13th Nov and will take 15mins.The hearing with Speedloan is 21st Dec...

 

OK - it is just for the set aside then

 

Speedloan still have to pay fee by 5th Nov..also the mediation people have been on to me about a telephone meeting with the OC.

 

Think I would procrastinate on this one until after 5 Nov. No fee, no case.

If they do pay the fee, it's up to you on the mediation but basically as they haven't provided any statements to date & have a dodgy DN, the only mediation I would undertake is on the lines of an offer that reflects the arrears up to the date of the DN less deductions for unlawful charges (which you would have to guestimate in the absence of statements) i.e. a take it or leave it deal!

So my set aside argument will be the fact that non compliance of 31.14 with the defective DN and the fact the case will be non winnable from Speedloans point of view due to lack of correct documentation.I will require the correct documents as requested in my 31.14.

I assume I can also take along the struck out letter from last time.

 

Correct!

 

 

Be aware that the DJ may ask you if you owe the money so think of an appropriate reply. You do owe it, but you are asking the claimant to prove it is enforceable in law. You may or may not come to an agreement under mediation as to how much you should repay. This thread may help:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191353-what-if-judge-asks.html

[jj69]

Be aware that the DJ may ask you if you owe the money so think of an appropriate reply. You do owe it, but you are asking the claimant to prove it is enforceable in law. You may or may not come to an agreement under mediation as to how much you should repay. This thread may help:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191353-what-if-judge-asks.html

 

 

Your a star thanks for taking the time out to assist...currently asorbing as much on DN law as possible..also watch my wording as well..

I am allowed to take notes in with me for guidance when consutting with the DJ ?

[foolishgirl]

I am allowed to take notes in with me for guidance when consutting with the DJ ?

 

Yes, of course & make notes too when the DJ or other side is speaking so you know which points you want to raise/make more of when it's your turn.

I also always take my laptop with all the info I might need reference to so I can ask permission to refer to it if needed.

[jj69]

Yes, of course & make notes too when the DJ or other side is speaking so you know which points you want to raise/make more of when it's your turn.

I also always take my laptop with all the info I might need reference to so I can ask permission to refer to it if needed.

 

Hi foolishgirl..I think I may have hit a snag with my DN notice..on posting it up to the forum previously I blacked out name / address and ref etc but have lost the copy I made before doing that..the terms are all there with dates etc it's just those personal details i covered over.I assume I can't hand that in as it stands ?

[foolishgirl]

How could you lose such an important piece of paper??

Suggest you turn the house upside down!!

 

Failing that, did you send a copy of it to the court at any time? They might, if you speak to the court clerk nicely, copy it for you. (You might have more success with this approach on a personal visit.) Other than that you might have some explaining to do to a DJ...

[jj69]

How could you lose such an important piece of paper??

Suggest you turn the house upside down!!

 

Failing that, did you send a copy of it to the court at any time? They might, if you speak to the court clerk nicely, copy it for you. (You might have more success with this approach on a personal visit.) Other than that you might have some explaining to do to a DJ...

 

I know muppet !! I have everything else files neatly ready to go...

Thats an idea I belive I may have sent a copy to the court when I submitted my defence last time..

Will call them now...

[jj69]

I know muppet !! I have everything else files neatly ready to go...

Thats an idea I belive I may have sent a copy to the court when I submitted my defence last time..

Will call them now...

 

Panic over found originals filed neatly away,right working on the DN but thinking if claiming that the interest and amount calculated is incorrect due to the varying totals I have recieved via their supposed legal dept showing amounts from 1000 up to 1400 then one stating you can get £700 off if you pay today.

My only concern is that a DJ will see that as refusal to pay despite these reminders.As the DN is defective I was going to go down the route of arreas only if the DJ decided that I did have to pay.

[foolishgirl]

Panic over found originals filed neatly away,

 

Good. Did you find your specs too?!

right working on the DN but thinking if claiming that the interest and amount calculated is incorrect due to the varying totals I have recieved via their supposed legal dept showing amounts from 1000 up to 1400 then one stating you can get £700 off if you pay today.

 

If they haven't sent you statements you can't check their calculations & the accuracy can you? Plus I think you said the DN sum was likely to contain unlawful charges (overlimits, late payments etc) so it would be defective on that score alone i.e. wrongly stated sum. But again, how can you (or the court!! ) assess a correct sum owed without full information if the calculations are not disclosed by the claimant?

My only concern is that a DJ will see that as refusal to pay despite these reminders.As the DN is defective I was going to go down the route of arreas only if the DJ decided that I did have to pay.

 

You need to make it clear to the DJ from the outset that you are not refusing to pay or own up to the debt, but that you are disputing the sum owed & the claimant's legal right to enforcement of the full balance, given that the DN is defective & now the account is terminated, cannot be rectified You should also point out your willingness to mediate on the matter but that without statements & with a defective DN on the table this would, at the moment, seem a superfluous process.

 

FG

[jj69]

FG

 

 

Yes my specs were on my head..lol..dont wear them but might be a case to now

 

Thanks I have not recieved any breakdown of payments for the account just a bundle of letters stating you owe this or that which does not constitute a breakdown of account.

Yes the DN does show incorrect amount as well as the terms date etc being wrong.

So will take these threat letters along to help my case !

Yes the mediation is still in place for the 18th so that looks good also need to check that the couyrt fee has been paid by today from the claimant.

If I remember rightly because of the DN issue the claimant is only legally entitled to arreas and not the full balance if the DJ decides is that correct ?

[foolishgirl]

.... also need to check that the couyrt fee has been paid by today from the claimant.

 

If it hasn't they will prob. get extra time from the court 'cos (a) postal strike & (b) they're professional claimants & not LIP

If they tell you this, ask how much time.

If I remember rightly because of the DN issue the claimant is only legally entitled to arreas and not the full balance if the DJ decides is that correct ?

 

Correct. The judgments to quote are Woodchester v Swayne Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

and Wilson v FCT Wilson v First County Trust [2000] EWCA Civ 278 (3 November 2000)

 

FG

[jj69]

FG

 

 

Great stuff foolishgirl lots of reading to do...you've come up trumps again..

[jj69]

FG

 

 

Hi foolishgirl...

Not sure if you are about but just some more advice.Claimant has paid fee so attending court this Friday for the set aside.

I have my statement almost ready,but one thing regarding DN and claimant only allowed to claim arrears..

I was going to add this point into the section disputing proof of posting ,incorrect amount etc...or should I save this to the end if the DJ decides the case should go to court ? I can then ask for documentation and claim for arrears only

[foolishgirl]

Hi foolishgirl...

Not sure if you are about but just some more advice.Claimant has paid fee so attending court this Friday for the set aside.

I have my statement almost ready,but one thing regarding DN and claimant only allowed to claim arrears..

I was going to add this point into the section disputing proof of posting ,incorrect amount etc...or should I save this to the end if the DJ decides the case should go to court ? I can then ask for documentation and claim for arrears only

 

The DN issue is an important piece of your defence but you shouldn't have to go into the detail at the set aside hearing, that will come at the full hearing.

However have all your docs. with just in case the DJ wants more info. If he doesn't ask for it, keep it up your sleeve re. the claimants.

 

Good luck on Friday, will be thinking of you...

 

FG