Urgent help required with a reissued claim form.

[citizenB]

That might be a good idea.

[Lapchien66]

I telephoned the court today, they told me that the original set aside order stated that I have to file a defence to the original claim form within 14 days of service.

 

So, I have until the 17th November to file a defence, can anyone help with that? I've seen a defence on the site stating no response to SA request, no agreements, no default notices etc - can anyone point me at a defence?

[42man]

Send out the CPR asap.....

[Lapchien66]

Done. I need to file a holding defence - correct? They almost certainly wont respond to the cpr request, they are in default of my SA request, even though they cashed my £10 cheque. Can you post up an embarrased defence? Upon receipt of the ED will the court send me an AQ?

[citizenB]

Done. I need to file a holding defence - correct? They almost certainly wont respond to the cpr request, they are in default of my SA request, even though they cashed my £10 cheque. Can you post up an embarrased defence? Upon receipt of the ED will the court send me an AQ?

 

Once your defence is in then the opposiiton have 28 days to make a move. If they elect to continue then you will be sent an Allocation Questionairre.

 

There are loads of embarrassed defences around, this is one I have used. Read each section carefully because there will be bits you need to amend. This one was mine and to date opposition has not continued. You can add or take away stuff. TBH, if you are pleading embarrassement then putting in too much "law/regulations will make it look a bit iffy.

 

 

In the xxxxxxxx County Court

 

Claim number

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

xxxxxxxxxxxx- Defendant

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

 

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

 

3. 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 courts 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 agreement 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 agreement 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 form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Prior to the issue of the claim, the defendant had repeatedly requested information from the claimant most latterly via a Subject Access Request and when no response was received a Letter before Action was sent.

 

5. It has been confirmed via the Royal Mail Website that both letters were received and signed for and confirmation has been obtained from the post office that the fee enclosed with the Subject Access Request was banked on the same day as the claimant issued the claim form, 18th May 2009.

 

6. On receipt of the claim form the defendant sent a request for a copy of the agreement which forms the basis of this claim. The information provided does not relate to the agreement stated in the particulars of claim.

 

7. The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award: (NOTE: here you will need to check the POC, if the claimaint does say this is an agreement under the CCA 1974 then you will need to amend to say " The claimant pleads that this is an etc, ")

 

The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

8. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

9. I respectfully request the court’s permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim and / or submit documents as requested .

 

Statement of Truth

 

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

 

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

 

Date

 

 

Edited November 9, 2009 by citizenB
Removed the wretched font formatting

[Lapchien66]

7. The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award: (NOTE: here you will need to check the POC, if the claimaint does say this is an agreement under the CCA 1974 then you will need to amend to say " The claimant pleads that this is an etc, ")

Their POC:

 

• The Claimants are Bankers whose registered address is xxxxxxxx
  

• The Defendant is indebted to the Claimants in the sum of £xxxxx, in respect of accounts maintained by the Defendant with the Claimants said Branch being money lent to the Defendant by way of an agreement(s) regulated by the Consumer Credit Act 1974.
  

• In breach of the agreement, ther Defendant failed to make payment and on the xx/xx/05 the Claimants did issue a Default Notice pursuant to section 87(i) of the Consumer Credit Act 1974.
  

• By letter of xx/xx/06, from the Claimants to the Defendant, the Claimants demanded repayment of the said sum, but the Defendant has failed to repay the sum or any of it.
  

• In the premises, the Defendant is indebted to the Claimants in the sum of £ xxxxx
  

• THE CLAIMANTS THEREFORE CLAIM THE BALANCE DUE UNDER THE AGREEMENT: £xxxxx
  

[citizenB]

They arent claiming s69 so you need to remove that paragraph entirely:)

 

What made me think they were

[Lapchien66]

Ready to file my defence then - on the court response pack, should I write 'see attached sheet' and attach a sheet with the defence typed up (I'll post up what I intend to send here first)?

[citizenB]

Yes, if it wont go in the space, then you can attach a separate sheet.

 

It should be headed up with all the court bumf.. You agains them, Name of Court, Claim number, etc.

 

Add a statement of truth at the bottom as in the quote below.

 

 

Statement of Truth

 

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

 

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

 

Date

Edited November 10, 2009 by citizenB
removed font formatting commands

[Lapchien66]

I've received an AQ, form N150, could do with some help completing it, particularly section F.

 

Thanks

Lapchien

[42man]

Some useful threads here

 

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

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161188-allocation-questionnaire-urgent-help.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/175566-upto-eyeballs-cl-finance-2.html#post1916595

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170982-dreaded-court-claim-came-4.html#post1966689

[42man]

Tough one for me to call Lapchien....i'm not sure whther it is best for the strike out application or draft orders to produce originals....are they over the 40 days to supply the SAR ?

[42man]

And I think i'm right in saying this is a reissued claim form from 2004 ? (CCJ struck out ?)

[Lapchien66]

The claim form was sent to my old address in Jan 2007, they obtained judgement by default. I had it set aside in July this year as I did not receive it, the judge gave them 14 days to send a copy of it to my new address. They did that a few weeks ago, I submitted an embarrased defence and I received the AQ yesterday.

[Lapchien66]

An update. SCM have sent me a barely legible loan agreement, plus copies of every statement from my old current account. These 2 accounts (the loan and bank account o/d) make up their entire claim. They have also sent me a part 36 offer to either accept the whole, and pay it back in 'reasonable installments' or they will accept a one-off payment of half the amount claimed. They have not so far complied with my request for copies of the defaut notices.

 

Question. Were this to proceed to trial, would they require the original agreement in court, and not a microfiche copy?

 

On the bank account, there's no o/d interest or charges save for £25, I'm struggling to see how I can defend that, other than if they have unlawfully terminated my account with a faulty DN.

 

Any comments?

 

Thanks

Lapchien

[42man]

Your agreement must be legible it is laid out in the Consumer Credit Act.....and yes you can order the original to be produced....

[Lapchien66]

I have a hearing for directions at the end of this month - what will be involved in that? I've CPR'd Lloyds to produce original docs (DN, CCA etc) so far they have not replied to anything I have sent them. The order from the court regarding the hearing states that parties must bring to the court original documents that thyey seek to rely on. Is the hearing a formality or will anything be decided..?

[citizenB]

I have a hearing for directions at the end of this month - what will be involved in that? I've CPR'd Lloyds to produce original docs (DN, CCA etc) so far they have not replied to anything I have sent them. The order from the court regarding the hearing states that parties must bring to the court original documents that thyey seek to rely on. Is the hearing a formality or will anything be decided..?

 

My understanding this is exactly what it says.

 

It is to enable the DJ to narrow down any issues, make sure that all paperwork is in order etc. See if there is any way it can be settled outside of litigation, etc..

 

Nothing will be decided by way of judgements.

 

You should attend and if the order says that original paperwork must be at the hearing then you should make sure you have everything.

 

Make a list of any questions you might need answering

[citizenB]

Just pinched this from another thread and posted by DonkeyB. In answer to a question similar to yours regarding a directions / CMC hearing.

 

 

It's useful in the sense that it's relatively informal, and aims to resolve many points before a full hearing. It will be useful for you to ask to have all the legal points clarified so you can make sure the judge knows what evidence to expect. And yes, they have to attend otherwise it's pointless. You can take legal representation.

 

Nicked from another site:

 

"In order to involve the parties fully in the control and conduct of the case, the Judge may require you (or an appropriate person within your organisation), or we might want you, to attend at Court for a case management conference. At this conference the Judge will give directions for the future conduct of the case, deal with any specific applications and may decide to dispose of an issue there and then, or order the trial of a preliminary issue. He may also discuss settlement with the parties."

[Lapchien66]

I'm attending an directions hearing in a week. So far scm have not replied to any of my formal requests for paperwork under cpr. I don't have any docs to show the DJ or base my defence upon, so what is my position?

[citizenB]

TBH, I am not sure. I will hit the SOS button and see if there is anyone who can advise.

 

I think you should take a list of the information you require and why it is important to your defence that you have sight of paperwork.

[citizenB]

Have had it confirmed that the information I gave earlier is correct. You will have the opportunity to request all the paperwork at the Directions hearing:)

[Lapchien66]

An update...

 

Just back from the hearing. I was met by the rep from **** and had a very brief chat before going in, she wanted a copy of my draft directions, I told her I didn't have it (why help them?).

 

The judge wasn't too bad, a little condescending, but nowhere near as bad as the rep from the sols. At one point she said it was amazing what you could google these days, when the judge was reading my draft order for directions, quoting slices from the relevant CCA! My draft order for directions required the cca and default notices for the 2 accounts. She told the judge that they did not have the DN's, but they could reconstruct them. Is that allowed? The judge seemed to think so.

 

The sols rep seemed keen to get me to admt that I had spent the money, and that they would be very keen to settle OOC, they've already tried 50% but I don't have 10k to hand

 

Outside the court I told the rep that I had no job, was living with parents, own no property or car etc, I asked her to feed that back to the sols.

 

I imagine that they will carry on regardless, and so will probably re-obtain the ccj in a few months. Shame as it will blight me for years, they will never recover the whole amount (what is £1 per month for a few years?) or their costs.

 

I am seriously thinking of taking up an offer to go and live in Norway, I have no ties here...

 

Can anyone comment on the validity of a reconstructed default notice?