Help with an Allocation Questionnaire please.

[hullaballoo]

I am doing battle for my OH in respect of a GE Money/CL Finance/ Howard Cowen Solicitors. I filed her defence taking chunks of others on this site which seemed applicable. We have now received the N152 AQ and I would be grateful if someone help with filling it out correctly, as follows:

 

* Have you sent a copy of this completed form to the other parties? I tick yes and send an unsigned copy to HC Solicitors?

 

A, Settlement: I ignore the "For legal representatives only"?

 

For all, Question 1: I tick Yes?

Q2: Is there any advantage to requesting a one month stay?

Q3: I tick No?

 

B, Location of trial: Its been transferred to my local County Court so I guess I tick No?

 

C, Pre-action protocols, I guess I tick Yes? Although the passing of documentation etc has been exclusively from them to us.

 

D, Case management information: I put the total ammount being claimed from my OH? No Applications. I put my OH as a Witness but should I include myself also as I am dealing with matters and will either support my OH or speak on her behalf in Court, if this is possible?

What do I put in the box "Witness to which facts" - all facts?

 

Experts: is self explanatory.

 

Track: Is fast track, the ammount claimed being just over £5,500?

 

E, Trial or final hearing: Any ideas as to how long a court case will take?

 

F, Proposed directions: No idea, any suggestions please?

 

G, Costs: Dont seem to apply as I do not have a solicitor?

 

H, Fee: I assume applies to the claimant not me?

 

I, Other information - In the space below, setout any other information you consider will help the judge to manage the claim. Any suggestions as to what, if anything needs to be filled in here?

 

Many thanks in anticipation of a bit of help with this.

[diamondgirl]

What date does the AQ have to be back at the court for?

 

Did you get all the necessary paperwork from the claimant?

Do all amounts/dates tally?

A bit more info about the debt would help everyone.

Did you fill in a full defence when you returned the claim form back to the court originally or did you just put you would defend all?

 

DG

[foolishgirl]

A bit more info about the debt would help everyone.

 

 

If you could also post up the POC (minus your personal details) that too would help CAGers advise on draft directions.

[hullaballoo]

This is my defence:

 

DEFENCE

 

The Defendant denies that she is liable to the Claimant as alleged in the Particulars of Claim, or at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison & Co Ltd v Burke [1956].

The Defendant requires sight of the Deed of Assignment of the debt. In addition the Defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925, which is required to give the Claimant a legitimate right of action in their own name since it appears this is an assigned debt. The reason the Defendant requests this information is inter alia to clarify the dates are correctly stated on all documents, the Defendant notes that if there are errors in the assignment it may be rendered ineffectual in law as per W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169.

 

It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970.

 

Regarding that which is denied, on the 15th June 2009, the Defendant made a request under the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by recorded delivery to the Claimant, with the statutory £1.00 fee enclosed. It was received on the 16th June 2009. The Claimant had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The Claimant failed to supply the credit agreement within the requisite timescale or at all, and are in default of said request under section 78(6)(a) of The Consumer Credit Act 1974.

Regarding that which is denied, on the 15th June 2009, the Defendant requested from the Claimant the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case. The information requested, inter alia, amounted to copies of the Credit Agreement referred to in the particulars of claim and any terms and conditions that applied to the account. Copies of statements for the duration of the agreement. Copies of any other documents the Claimant seeks to rely on, including any default notices or termination notice and the proof of posting. Also a copy of the Notice of Assignment which is required to give the claimant a legitimate right of action.

To Date the Claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale or at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

Regarding that which is denied, the Claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 17.479% per annum. The Defendant notes that the Claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

 

The Claimant, possessing no legal right claim monies allegedly owed, has acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed regarding that which is denied, contains penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons.

The AQ has to be in on or before the 1st September.

 

[foolishgirl]

Have you looked at pt's thread on AQ's hullaballoo?

 

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

 

It gives you lots of help on compiling your draft directions.

 

Also TLD helped Diamondgirl out some time ago & included 'other directions' to force the claimant into producing the info:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/188747-link-financial-ge-money-6.html Post #115

 

You will need to amend as appropriate to your particular case.

[hullaballoo]

Hi again and sorry I could not reply last night. Thanks for the information and links but the situation has changed from the time of submitting the defence. We have now received a copy of the credit card agreement and it is enforceable, we have not however received a copy of the terms and conditions requested in our CPR 31.14. Amoungst other documents requested was also a copy of the Default Notice which is refferred to in their POC. They have sent us a copy of a DN but we definately did not receive the original of this, or any DN at all! So some of the defence I submitted is not applicable as they have supplied some of the documents.

 

So in the light of the documents they have provided should I simply modify PT's Draft Order for Directions to read as follows:

 

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

* Copies of the terms and conditions that applied to the account at the time the account was opened and at the time of default.

* The proof of service of the Default Notice

* 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 documents relied upon.

 

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

 

The Defendant shall within the 14 days thereafter file and serve the following

* An ammended defence sufficiently particularised in response to the documents supplied by the Claimant.

 

 

Following on PT's thread to Section G/H - Other information.

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

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a dissadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will inhibit the courts ability to deal with the case.

 

PT then goes on to cite The House of Lords in the case of Wilson v First County Trust Ltd but this does not apply in our case as we have a signed compliant credit card agreement. In our case we require the proof of the service of the Default Notice as we did not receive it.

 

So should I put the following:

 

The Defendant denies that she is liable to the Claimant as alleged in the Particulars of Claim at all.

 

It is averred that the Defendant has not been served with a Default Notice in respect of the alleged debt. Service of a Default Notice is a statutory requirement as laid out in sections 87,88 and 89 of the Consumer Credit Act 1974. Section 87 makes it clear that a Default Notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without a valid Default Notice, I suggest the Claimants case falls flat and cannot proceed and to do so is clearly contary to the Consumer Credit Act 1974.

 

The copy of the puported Default Notice states an arrears which includes penalty charges which are unlawful at Common Law, (Dunlop Pneumatic Tyre Company ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999). Failure of Default Notices to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful recission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

 

It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1) of the Law of Property Act 1925, in respect of the alleged debt. The ammount detailed in the Claimants claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pheumatic Tyre Company v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable.

 

The Defendant requires sight of the Notice of Assignment and Deed of Assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. The reason the defendant requests this information is inter alia to clarify the dates are correctly sytated on all documents. The Defendant notes that if there are errors in the assignment it may be redered ineffectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169.

 

I assume that this case will be "Fast Track"?

[foolishgirl]

Is the copy of the DN they have sent you compliant? i.e. in particular does it state the full 14 days + delivery time from its date of issue to the date of remedy?

 

If it does & you are sure your agreement is enforceable, your whole defence would seem to depend on (a) the DN amount included penablty charges & was therefore inaccurate & (b) them providing proof that they issued it on the appropriate date. Note - they do not have to prove delivery!

 

Of course, you also have to persuade the DJ to accept that failure to issue a DN in the correct amount + claimant's failure to provide the proof of posting (which they will prob. struggle with ) is sufficient to ensure you are only liable for the arrears at the date of default & not the full balance they are claiming.

 

Re. fast track: if it is more than a £5000 claim, almost certainly it will be. The claimant will also prob. throw a legal at it on the day of the hearing so you must be prepared with a thorough knowledge of your arguments of the law & judgments relating to DNs.

[lilly white]

The Assignment of the Debt

 

 

19. If the Claimant was not Sainsburys Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

Sums Claimed

 

 

26. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

 

 

 

27. Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”)

 

 

 

 

28. In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

 

 

29. In case the Claimant included a claim for interest which is pleaded pursuant to section 69 of the County Courts Act 1984. The Claim for interest pursuant to the County Courts Act is by virtue of County Courts (Interest on Judgment Debts) Order 1991 is denied. Paragraph 2 (3)(a) of the Order states that Interest shall not be payable under this Order where the relevant judgement is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

 

 

30. In case the Claimant also claims interest from judgement date until payment. It is not admitted that there are any contractual terms that allow the Claimant to claim this or any interest after judgement.

 

 

31. It is denied (if it be alleged) that the Defendant is seeking to find “technical loopholes” to avoid alleged liability to the Claimant. on the contrary, in the cases and authority quoted within this defence, it has been confirmed that a lender who wishes to enforce a term of it’s contract before the court should first make sure that the contract strictly complies with the requirements of the law – in this case the Consumer Credit Act 1974 and associated Regulations.

 

 

32. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

 

Statement of Truth

 

 

hope this helps edit to suit

Work of nicklee well done mate

[hullaballoo]

Thanks very much for your help, much appreciated.

[hullaballoo]

Thanks again for your help foolishgirl and lilly white. Could someone have a look at the following which I am going to attach to my AQ - N150 Form in "Other information". My concern is to its lenght, should it be compressed as it seems more like a revised defence? Should I be giving so much information on what my defence will be based? Any other comments please?

Thanks lilly white for your input, was it from a thread in which case can you give me the link?

 

 

C L Finance Limited v ......................

Claim Number: ........................

N150 Allocation Questionnaire

Section I – Other information.

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

The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

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

It is averred that the Defendant has not been served with a Default Notice in respect of the alleged debt. Service of a Default Notice is a statutory requirement as laid out in sections 87, 88 and 89 of the Consumer Credit Act 1974. Section 87 makes it clear that a Default Notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without a valid Default Notice, I suggest the Claimants case fails and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974. Also it is submitted that the alleged Default Notice fails to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561), as a consequence of which the Default Notice is rendered invalid.

It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1) of the Law of Property Act 1925, in respect of the alleged debt. Section 136(1) requires that for the Assignment of a debt to be effective, express notice in writing must have been given to the debtor. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Defendant requires proof of service of the Notice of Assignment as without this proof, the Claimant has no right of action.

Further, it is submitted that the mere fact of giving notice does not, of itself, create an assignment and there must be an actual assignment in existence under which the Claimant derives title to bring the claim. The Claimant is put to strict proof that such Assignment exists. It is averred that I am entitled to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). The Defendant notes that if there are errors in the assignment it may be rendered ineffectual in law per W F Harrison and Co Ltd v Burke and another – [1956] 2 All ER 169.

The amount detailed in the Claimants claim, which includes penalty charges, which are unlawful at Common Law, Dunlop Pheumatic Tyre Company v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. It is not admitted that any or all of the monies claimed are lawfully owing and the Claimant is put to strict proof as to how the sums claimed have been calculated.

The Defendant denies she is liable to the Claimant as alleged in the Particulars of Claim at all.

[supasnooper]

Have a look at pt2537's guide to N150 - http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

Here's a few more links to peruse -

 

Link Financial County Court Summons - N150

 

Allocation Questionnaire...Urgent help needed please!!! - N150

 

upto the eyeballs v CL Finance No CCA IN COURT ** Help ** - N150

 

The dreaded court claim came today... - N150

[hullaballoo]

Thanks supa I have read those and a great help, some of which I have used but my situation is quite different. But it does seem to show that my response to the AQ is not overly long winded?