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Hello blessed Selves,

 

I have spent more months than is good for me reading about 'true copy' agreements and sent out my first CCA request letters last week. It felt great to drop the letters in the post one by one. Why, oh why, did I not get on and grasp this nettle sooner.

 

My debts have been in a DMP for several years but the monthly payment would not repay the capital in more decades than I have left to me. Enormously relieved to have got a nightmare situation under some sort of control five years ago, I have been happy to 'let sleeping dogs lie' rather than disturb what has been a relatively worry arrangement.

 

I am very grateful to everyone who has contributed their time and energy to this site to share their knowledge and experience in these matters for the benefit of others. I could not have initiated this assault on my personal debt mountain without your expertise and encouragement. Thank you.

 

Dun

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Hi Dun.

 

If you stick around long enough, you'll be offering help to newbies who come, after you.

That's how we all started.

 

Regards, Rooster.

If this has been useful to you, please click on the scales at bottom left of post. Thanks.

 

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Friends,

 

I have received two DCA replies.

 

From one: The matter is held in abeyance while awaiting instructions from the client.

 

This letter seems to be self explanatory.

 

From the other: Currently we are unable to provide you with the required information. ... referred your request to original creditor ... During this period we will hold your account and collections activity will be suspended.

 

The £1 PO was returned with this reply.

 

Rightly or wrongly, in practical terms, I assume that this is the end of this particular debt. The DCA continues to hold the account but has suspended collections activity.

 

I am delighted, of course, and pleasantly surprised by the prompt and uncomplicated way in which this DCA has responded to my request for a true copy of the agreement.

 

However, for my part, I am keen that the matter should not rest here and several questions arise:

 

I would say that the DCA has received some £600 in payments to this account over the years since the DCA wrote to me saying 'we are now responsible for collecting this account'.

Q.1. Under what circumstance might these payments be recoverable? Need the DCA have a record of assignment, for example, to request and take payments on the account?

 

In any event, I will write in due course requesting disclosure of such information as the DCA may hold on me.

Q.2. Am I right in thinking that if the original CCA cannot be produced, nor a notice of assignment, the DCA has no right to 'hold the account'?

 

At some point in the future, I will address the entries on my credit file.

Q.3. What right does the DCA or the original creditor have to publicise this matter through a credit reference agency if there is no copy of the original agreement?

 

Thanks in advance.

 

Dun

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Which DCA is it ?

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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Hi dun wi debtin,

I saw your query on noomill's [ wonderful ]thread about card payments being possibly taken from a company back account .

 

I cannot be sure (not a lawyer) but there is a risk. Certainly if you have a personal current account and another indebted account, the banks can use 'set-off' to move your money without your explicit permission (or even knowledge). I have in the distant past had a local branch manager at Midland Bank (as was) move money from my Company to my personal account to clear my personal overdraft without my permission. The overdraft was unauthorised so he was probably getting flack from the computer reports for allowing it to continue.:rolleyes:

 

I would strongly suggest you consider moving your Company account to another bank. That way it is safe from set-off meddling and you can retain control of your firm's monies. Cool ...

 

... From the other: Currently we are unable to provide you with the required information. ... referred your request to original creditor ... During this period we will hold your account and collections activity will be suspended.

 

The £1 PO was returned with this reply.

 

Rightly or wrongly, in practical terms, I assume that this is the end of this particular debt. The DCA continues to hold the account but has suspended collections activity.

... snip ...

I would say that the DCA has received some £600 in payments to this account over the years since the DCA wrote to me saying 'we are now responsible for collecting this account'.

 

Q.1. Under what circumstance might these payments be recoverable? Need the DCA have a record of assignment, for example, to request and take payments on the account?

 

Returning the £1 is very polite! :)

My take on this is that because they contacted you and you acknowledged, and gave monies, then that was your gift to someone who CLAIMED they had proper assignment of the debt. Kind of a con really ... however, on the other hand, the DCA has a debt which is similarly a gift to you from the original creditor (without paperwork). Furthermore, even though he cannot enforce the debt, he is liable for return of unlawful charges made by the original creditor. But you can't get back your payments on account. There is a good chance they have already recovered their original cost so it may stop there. The money was an unsecured loan that came completely adrift, so that's that, the DCA managed to get you to give him some money out of choice, you came out the right side ... end of story?!

 

Q.2. Am I right in thinking that if the original CCA cannot be produced, nor a notice of assignment, the DCA has no right to 'hold the account'?

 

I think "hold" in this context probably means 'pause' rather than 'keep'. If they can get some old tatty doco and call it a CCA they might un-pause and attempt collection some more. Depends on whether they know what they are doing or not with regards to the law. Many are clueless, it seems. But they can hold it in either sense all they like as long as they don't try to unlawfully collect that's that.

 

Q.3. What right does the DCA or the original creditor have to publicise this matter through a credit reference agency if there is no copy of the original agreement?

 

To say you are not making payments when you do not have to make payments (because the DCA is in default) is defamation. It depends on how much you care about your credit score etcetera as to whether you choose to make a serious issue of this. They have no right to defame you.

 

BC keep sending me unsigned copies of contemporary T&Cs for the Bcard they claim I have (former Morgan Stan a/c) even though they write to me stating they have to provide a 'true copy' of the CCA. :roll: They have made some credit entries that are incorrect, and I have had staff declare that collection will continue even though they are in default. They have stopped updating my credit records more recently, as no payments are being made, but 'statements' come and they continue to phone. I expect they will persist for some time but as long as they don't seriously defame me at Experian I care not.

 

See how it goes for you. Certainly you should look at pragmatic ways to reduce risk of set-off meddling to your firm. it's probably fairly easy to move a business account just now, they all seem desperate for business as usual!!

 

Regards,

Lamplighter.

"Do just once what others say you cannot do, and you will never pay attention to their limitations again." - Arthur C. Clarke.

"Thy word is a lamp unto my feet, and a light unto my path." - Psalms 119:105

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Thanks, Lamplighter.

 

I have just put a sum I can afford to lose through my 'self-employed' business account to test the water, as it were. But I am nervous about the account now and will make alternative arrangements rather than risk a larger sum being retained by the bank.

 

Coincidentally, the CCA request letter on the personal account overdraft which has been under a DMP for some years (with the same bank as the business account above) was returned to me this week along with the £1 PO. The covering reply stated "credit agreement not applicable on bank accounts". Is this correct? I understood that once a current bank account went into overdraft it fell under the same rules and regulations as other bank loans and credit agreements.

 

Anyone?

 

Another current account overdraft on which I CCA'd the DCA involved wrote back that they had passed the letter on to the originating bank. No further news on that one.

 

Meanwhile Barclaycard have produced current terms and conditions to fulfill their obligations.

 

So far I have six replies from all the CCA requests I put out. None, to the best of my judgement, represents evidence of an enforceable agreement.

 

Halifax claim that because of a default notice served last year the agreement is ended and the Consumer Credit Act does not apply to the full balance of the account which is now due. Comments anyone.

 

Dun

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Hi Dun wi,

It is possible that a current account comes under these regs, but there are several specific sets of circumstance which define precisely how this may or may not happen. I have seen a write up on the site but could not readily find it for you, perhaps one of the site crew know the bit I mean. It may be in one of the stickies ... have a look around.

 

Barclaycard will keep saying that a completely unsigned copy of their T&Cs satisfies your request, but I have to say that they are being disingenuous, if you refer to Muffintop's thread about them you will see the rubbish they have written to her pretending that s.76-78 do not apply because of other paras in the CCA74, ingenious but complete rubbish. Note that Muffintop is arguing about a card no longer being paid off, not an assigned debt or overdraft in management plan. This may make a difference at law. I'm not experienced enough to comment on that.

 

Halifax may be right, I don't know. One of my debts is an (unavoidable) default on a CC but still they are bound by CCA74.

 

Cheers,

LL.

"Do just once what others say you cannot do, and you will never pay attention to their limitations again." - Arthur C. Clarke.

"Thy word is a lamp unto my feet, and a light unto my path." - Psalms 119:105

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  • 1 month later...

Hello All,

 

My greatful thanks to everyone involved in this great site.

 

Some time ago I sent out CCA requests to all my creditor debts in a DMP.

 

In response to these requests I have received two signed application forms and several replies which fulfill the 'technical' requirements of compliance with my statutory request but NOT A SINGLE ENFORCEABLE AGREEMENT between them.

 

Wow! I cannot begin to describe the relief. It was wonderful to start straightening out my affairs through a DMP some years ago but this is a league apart in terms of self empowerment and self esteem.

 

All but two accounts formally being repaid through the DMP are now in dispute.

 

The remaining accounts awaiting a second letter from me are both bank accounts in overdraft. One with a DCA. In spite of the fact that the account has been with the DCA for many many years the CCA request was passed on to the bank for reply, which reads as follows:

 

It is important to point out that the bank does not require customers to sign an agreement under the Consumer Credit Act in order for an overdraft facility to be applied to the account. Therefore a copy of the signed agreement is not available, and is not required to be provided to you under the terms of Section 78.

All borrowing facilities are agreed in acordance with the terms and conditions of your account, and overdraft facilities are finalised by way of a confirmation letter.

The other reply which included the return of the £1 PO was a tick box form on which was handwritten: Credit agreement not applicable on bank accounts. Please provide loan or credit card details.

 

I would be grateful for any opinions regarding bank overdrafts and the CCA 1974. I have had a good look around the site but cannot find an answer; if I have missed the appropriate thread please help me with a link to it.

 

Thanks,

 

Dun

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  • 3 months later...

Hello All,

I have received a County Court summons through the 'Bulk Centre' at Northampton. The claim is for a sum exceeding £5,000.

Once again, I am grateful to all the contributors to this site for the help it provides in dealing with such matters.

 

Below, I reproduce a response letter posted on the site which I have amended for my own needs and sent to the DCA's solicitor by registered post. I have acknowledeged service and registered my intention to defend the claim online.

Dear Sir/Madam

 

Re: DCA v dun wi debtin Case No: XXXXXXXX

CPR 31.14 Request

 

On 24th October 2009 I received the Claim Form in this case issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1. The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2. The assignment.

 

3. The default notice.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

 

The letter is brilliant. I cannot begin to describe how good it feels to be so empowered by this site. I was in a similar position several years ago which resulted in a CCJ against me.

My understanding is that this letter puts the ball back with the DCA to support their claim against me with documentary evidence prior to my submitting a defence and thus obliges the claimant to reassess their chance of success before continuing. Most importantly, this letter enables me to avoid the pitfall of submitting a defence e.g. 'the agreement is not enforceable' which would place me in the burdensome position of having to prove my assertion without further ado.

I will keep you posted as to what happens next. In the meantime advice and expressions of interest would be much appreciated.

Dun.

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Thanks for replying PGH7447.

 

Although I accept you have a point, I am reluctant to put these details in the public domain. I do not meant to cause offence by withholding the name of the DCA and the solicitor acting on their behalf.

 

I spent a lot of time looking around the forums this weekend and came across two threads with the same solicitor and DCA as I am dealing with here. Unfortunately, both threads came to an abrupt end before the matters at issue reached their final resolution. In fact, one thread ended by stating that the outcome was not to be disclosed. What a mystery!

 

For your information:

 

The DCA 'owns' three of my debts. The face value totals £17,000.

 

I requested true copies of the agreements by registered post in May. The requests were ignored. In July I sent follow up letters by registered post placing the accounts in dispute.

 

My second letters crossed with one reply from the DCA. The reply, to one of my original letters requesting a true copy of the agreement contained a difficult to read photocopy of my signed credit card application form to the Bank of Scotland completed in 1992 plus photocopies of the T&Cs applicable at the time and an up to date statement of the account.

 

I sent a reply to this letter by registered return of post continuing to dispute the account. The contents of my letter was lifted from this site:

The document that you have supplied does not constitute a legally binding regulated agreement between us and is in breach of Section 61 of the Consumer Credit Act 1974 and is therefore unenforceable by virtue of Section 127 of the Act. I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2006.

I do not and will not acknowledge this alleged debt. I dispute the legality of the debt until such a time as you can produce a satisfactory consumer credit agreement.

 

 

Over two months later, in September the DCA wrote to advise me that they had fulfilled their obligations under the Act.

Just about three weeks on and the claim form has been issued from the Northampton County Court Bulk Centre through the solicitor.

After a weekend on the site I have replied to the claim as described above and sent a Subject Access Request by registered post to the DCA.

 

 

It is my understanding that the copy application form dated 1992 does not contain all the prescribed terms and does not, therefore, constitute an enforceable agreement.

 

 

What more to say?

 

 

To recieve a copy of an application form from 1992 was a surprise. This credit card was defaulted in 2004 and assigned to the DCA in 2008. I presume, given the small monthly repayments made through my Debt Management Plan since the assignment of these debts through until early 2009, the DCA is 'out of pocket' on the purchase of this nominal £17,000 of debt.

If the claim is pursued by the DCA I will need all the help I can get from the site and its membership so I certainly do not meant to antagonise you or anyone else by withholding the details of the claimant and their solicitor at this stage.

Please forgive my cautious approach.

Dun.

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Hello saintly 1,

 

The Claimant's claim is for the sum of 7214.50 being monies due ... under a regulated credit agreement between the Defendant and Bank of Scotland Plc ... and assigned to the Claimant on 28th November 2008 notice of which has been given to the Defendant.

 

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant pursuant to Section 87(1) of the Consumer Credit Act 1974.

 

The claimant claims the sum of £7214.50.

 

Including costs the total amount is £7.5k.

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  • 2 weeks later...

Hi dun wi debtin,

 

It does all hinge on the enforceability of the alleged agreement. If you shout at them loudly enough they might just back off, but make sure you comply with all the court deadlines and keep the court informed about your requests for information.

 

This dodgy shower got a default judgment against my OH a couple of weeks ago - I haven't updated my own thread yet as have not been around for a while - but that was after twelve months had passed since we made our final request for information and we assumed it had been well and truly put to bed.

 

We managed to get a set aside and now working on the defence.

 

A week after the judgment they sent some woman purporting to be a bailiff to the house:eek: OH sent her packing - she didn't even know what a set aside application was.

 

Keep us posted about progress, and make sure you do everything by the book.

 

If you are sure the agreement is unenforceable then keep battling.

BANK CHARGES

Nat West Bus Acct £1750 reclaim - WON

 

LTSB Bus Acct £1650 charges w/o against o/s balance - WON

 

Halifax Pers Acct £1650 charges taken from benefits - WON

 

Others

 

GE Money sec loan - £1900 in charges - settlement agreed

GE Money sec loan - ERC of £2.5K valid for 15 years - on standby

FirstPlus - missold PPI of £20K for friends - WON

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  • 2 weeks later...

Thank you Goldlady and PGH7447.

 

To recap my position: Claim agaist me (dated 19th October) received 24th October. CPR 13.14 request sent to solicitor (delivered 27th October) and SAR sent to claimant (delivered 27th October).

 

I have received no reply to the CPR 31.14 request nor to the SAR. I have not sent a follow up letter to the solicitor.

 

I must submit my defence to the court in the next day or two. I would appreciate any comments on the following submisssion under the circumstances in which I find myself. Maybe I am jumping the gun with the draft order request?

 

PS I am a litigant in person. Should I state this fact? Also, I have seen references to 'the Wilson case' on the site which suggest it may be pertinet to the proposed draft order but could not find sufficient information to include it in my submission.

 

All help gratefully received. Thanks.

 

The Defendant denies liability to the Claimant as alleged in the Particulars of Claim.

On 26th October 2009 the Defendant sent to the Claimant's solicitor in this case a CPR 31.14 request for the disclosure and the production of a verified and legible copy of each of the documents mentioned in the Particulars of Claim: 1. The agreement. 2. The assignment. 3. The default notice.

The CPR 31.14 request was sent by recorded delivery post and signed for on 27th October.

The Claimant's solicitor has not complied with the CPR 31.14 request. No acknowledgement or response to the CPR 31.14 request has been forthcoming from the Claimant's solicitor.

Without production of the requested documents, I am at a disadvantage and I am unable to serve a full and proper defence.

If the court is in agreement, the Defendant respectfully requests that special directions be given as per the attached draft order.

 

The Defendant proposes these directions in mind of the procedural code and the overriding objective of enabling the Court to deal with cases expeditiously and fairly. The documents requested of the Claimant are the crux upon which this claim rests. The proposed directions will ensure that the parties are on an equal footing and will enable a full and proper defence to be filed by the Defendant. Furthermore, the proposed directions allot an appropriate share of the Court's resources to the case while taking into account the need to allot resources to other cases.

 

And then:

 

Between

 

************* - Claimant

 

and

 

 

xxxxxxxxxx - Defendant

 

 

 

 

 

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 andConsumer 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 by dun wi debtin
afterthought
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Hi, no I don' t think you are jumping the gun with the draft order. I did that with one of mine and was amazed when the court did send it to the claimants. But then if they won't supply you with any information how the heck are you supposed to defend it?

 

Looks fine to me - go for it.:D

BANK CHARGES

Nat West Bus Acct £1750 reclaim - WON

 

LTSB Bus Acct £1650 charges w/o against o/s balance - WON

 

Halifax Pers Acct £1650 charges taken from benefits - WON

 

Others

 

GE Money sec loan - £1900 in charges - settlement agreed

GE Money sec loan - ERC of £2.5K valid for 15 years - on standby

FirstPlus - missold PPI of £20K for friends - WON

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My defence and request for directions in the case has been received by the court and passed on to the claimant. The documents do not go before a judge unless the claimant wishes to pursue the claim so there is no question of directions being issued by a judge in the case at this stage.

 

If the claimant does not reply to my defence within 33 days from the date the defence was issued to them by the court the case will be 'stayed' i.e. suspended indefinitely.

 

As I understand the situation: If the case is stayed I may submit a form N244 (cost £40) and apply for the case to be struck out. The only reason for making such an application would be to force the claimant to bear the full cost of issuing repeat proceedings (£120) rather than the reduced cost (£40) which would be required to have the stay removed to proceed with this case at some later date.

 

Presumably, if the claimant has the documents I have requested in my defence the documents will be submitted to the court within 33 days. If they are produced thereafter it will cost the claimant £40 to have the stay removed from the case in order to submit them to the court. Either way, the claimant is now forewarned that the claim will have to be proved in order to succeed. Too bad!

 

The bottom line: From the DCA's point of view, if there is no enforceable agreement (and my guess is that there isn't one in this case because a CCA request for a 'true copy of the agreement' remains outsanding after six months) issuing proceedings is a straightforward numbers game for the DCA. The proportion of defendants that come unstuck, one way or another, even though there is no enforceable agreement, would not have to be very high for the gamble to pay a dividend. (The dividend being a CCJ 'guarantee' of a debt's enforceability, plus costs and interest, in spite of that fact that no true copy of the original agreement exists or, quite possibly, where no such agreement was ever entered into in the first place.)

 

Thanks to this site I have been able to submit a defence to the claim that places the burden of proof entirely with the claimant.

 

If the case is stayed I will donate £40 to this site in the new year instead of submitting an N244 request to have the case struck out - which would be pointless, even if I had forty quid to spare. However, I am only too pleased to save the money and donate it to the Consumer Action Group.

 

Thank you one and all.

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  • 1 month later...

Happy New Year.

 

The claimant has requested that the case proceed. Therefore the case has been passed to my local county court and I have been sent an N150 allocation questionnaire.

 

I have already posted my defence and request for directions in this thread. As far as I am aware, the claimant has submitted no documents to support the claim.

 

I would be grateful for advice as to how I should proceed with the N150? Presumably there are pitfalls to be avoided.

 

Thanks,

 

Dun

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Since the claim in this case exceeds £5000 it falls outside the small claims limit and the allocation questionnaire is form N150 wherein I have the option to choose the track on which I would prefer the case to proceed.

 

Is it to my benefit to ask the judge to allocate the case to the small claims track rather than the fast track?

 

Thanks.

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Thanks very much 42man. The links were very helpful. I have now filled out the N150 and will deliver it to the court on monday (the deadline for delivery).

 

Today, I have received a second claim through Northampton from the same solicitors on behalf of the same client for another card and a similar sum.

 

So the process unfolds again. My intention to defend the full claim has been submitted electronically and CPR 31.14 request is ready to go.

 

However, since instigating their earlier claim the DMC has added £5 in charges to each of two other accounts they have bought (including the one now going through the court process) so I think I need to make a request under CPR 18 also. Correct?

 

I have read the relevant CPR Rules on the Ministry of Justice web site and seen refernces to CPR 18 on this site (including x20's reference to non-compliance by the claimant to a CRR 18 request in an N150) but no template for the actual CPR 18 request letter. Any pointers there please?

 

Thanks.

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