County Court claim - jaznh

[jaznh]

The mediation service contacted me this morning - hurray! - They advised that I could request any documents we wanted during the mediation with CL Finance. Does anyone have advice on how to proceed within mediation?

Many thanks, JnH

[hammyhound]

Jaz, CL Finance requested mediation on my claim so this was requested by the court. Mediator was great, spoke to her on the telephone as requested by the court.

 

She asked what I required, I told her the DN, the CCA and the Notice of Assignment. She requested this from CL Finance who said "yes they are here we will send them". Two weeks later they sent statements - not what I asked for I told her. She then telephoned again and they said "we haven't got the DN but we can reconstruct it:D and the Defendant does not need a Notice of Assignment:rolleyes:

 

Hence to say mediator said "CL Finance are famous for this - I will refer it back to the court and say "no scope for mediation". Now listed for a hearing and to date they haven't paid the hearing fee.

 

So my advice - ask the mediator to request the documents, they are really helpful - explain your situation - no doubt CL Finance will balls it up. I assume it is HC who are the solicitors.

 

HH

[mounty]

I'm a novice on this site so not sure where to post this, so apologies for hi jacking this thread.

After the blow on bank charges being deemed fair etc etc I have given up hope on my reclaim of about £2500 from Lloyds TSB. We were one of the unlucky ones who had been given a court date which was due to be heard and then 6 days before the court hearing the whole job was put on hold.

What i would like to know is...... Is there anyway I can get a refund on the court fee I paid about 3 years ago? Don't see why the courts should keep it as they never had any costs. Any advice appreciated and sorry for posting in the wrong place.

[jaznh]

Hello again. Just got off the phone with the mediator - she's very helpful.

 

Apparently, CLF's sol's say that we haven't made a defence - so I said doing so without any of the documents we've requested is very difficult; to say the least! They've also said they have all the documents, to which I replied:"If you do, let us see them, then we might be able to make an agreement!". She understood that until we've got the documents we've been asking for (since last August), we have no chance of mounting a proper defence.

 

The mediator gave me her personal phone number; told me that it might often be engaged, & said that once I've had a chance to peruse what they're sending, get back to her & see if we can make some sort of agreement. Sounds OK so far...

 

Would it be a good idea to post any of the documents here when I receive them? & one other thing:-The mediator told me that the judge hasn't seen any of the claim's 'papers' as yet, which implies he can't yet respond to my AQ's documents, including pt's Draft order for direction's, which clearly indicates we cannot make a defence even at this stage.

 

Any advice much appreciated.

Regards, JnH

[supasnooper]

It comes across as rather odd really.

 

Unless the Judge has seen that mediation has been requested and acted on that alone without further reference to the rest of the AQ.

 

Please do post up the documents that CLF provide (minus personal details etc)

[jaznh]

So hopefully I've done it correctly this time.

 

The two documents we received below are the agreement, & the alleged Notice of assignment. These are the only doc's received, other than statements going back to Feb 2008, when, as you'll see from the agreement, it dates from 2001. Does this have any significance?

 

You will probably appreciate then, that we have not received any kind of Default Notice, nor deed of assignment or termination notice. What do you all think about this?

 

Once again we would be very grateful for any responses.

Regards, JnH

 

 

 

 

Sorry if the images are too massive - I was really struggling to get anything in there!

[supasnooper]

Unfortunately the CCA and the NOA appear to be valid.

 

Please check that the account number on the NOA matches up with the Account number of the original creditor.

 

The CCA that has been supplied contains the Prescribed terms required for it to be deemed enforceable.

 

Have a look at these links which may help you understand the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

Consumer Credit Agreements

 

However, I would ask the mediator to pressurise HC for the Default Notice; remember it is a Statutory Document and one that you are entitled to.

[jaznh]

OK - I've notice a few things about the PoC & the NoA - And I'll begin with the Notice oA:-

 

Firstly, you can read in the copy of the notice above - http://www.consumeractiongroup.co.uk/forum/legal-issues/216902-county-court-claim-jaznh-5.html#post2751831 - that the agreement is made between 'Santander Cards UK of (address) & (the cardholder)'.

 

I do think that the acc. no. is the same, but the agreement makes no reference to Santander cards. It was made with 'GE Capital Bank Ltd, of a different address than that mentioned in the NoA. How can the defendant be forced to comply with an agreement, when they have no evidence that the claimant is the same company that the agreement is made with?

 

Also regarding the Notice; there is no reference to CC Act, 1974. This appears to be in breach of the Consumer credit reg's 1983, (2) (1) (a); & in fact, the notice seems to breach a number of other clauses. Really sorry, I can't seem to find the link snoops gave me to CCR's, 1983. But the main point I'm trying to make, is that there is no default notice; so where does that leave us regarding a NoA?

 

I also mentioned the particulars of claim. There are two references which I need to ask questions about: i) The last paragraph refers to 'clause 7' of the agreement, which CL Finance say 'claims contractual interest'. However, there is no clause 7, as you should be able to see from agreement above. There is a clause 6, which ends the agreement, since the creditor asks the applicant to sign here. Does this in any way make a difference to CLF's claim?

 

ii) I'm hoping this second point will make a BIG difference - In par.2 of the PoC, CLF say:' The Defendant has failed to make payment in accordance with the terms of the agreement & a default notice has been served upon Defendant pursuant to Section 87(1) of the CCA 1974.' But this statement is either a blatant LIE, or they have deliberately neglected to provide evidence that such a DN was served; when I asked in mediation that a copy should be sent. The mediator told me that the claimant's solicitor said that it would be. I had told the mediator, also, that we had been seeking the DN, several times, since the beginning of August, 2009.

 

I do hope that I'm not asking too much of anyone to help with these foregoing points, but perhaps if I can resolve them, it would bring an end to all of the ins-&-outs of our case.

 

Can I also say a huge thank you, a great deal of appreciation, & absolute respect to the CAG forum site team, especially to snoops, who have given me so much help.

 

Regards & best wishes, JnH

[DonkeyB]

GE Capital cards interests were bought by Santander in early 2009, and they moved quickly to dump the 'non-performing' accounts. However, I'm sure Santander should have informed you that they now owned your account. Have you received a statement of account from anyone over the past year? It's now a legal requirement.

 

However, it's not just the CCA and the NoA they can fail on.

 

While such an odd NoA/notice of claim is, I'm sure, legitimate, it won't please a judge as there has been no letter before action, and no opportunity to negotiate before action was begun and costs incurred. Therefore a judge would be very unlikely to award costs if these facts were raised.

 

Next - Cohen always refer to Clause 7, and it seldom exists. It is a serious flaw in their PoC but again they will claim admin error. I'm guessing you have not had the T&Cs which supposedly formed part of this agreement? Can you post up anything you do have?

 

The numbers above in the application aren't the clauses - there should be linked T&Cs which should have been given to you at the time the agreement was signed. If not, they can forget clause 7 and the interest (Carey v HSBC 2009) - someone like pt2537 might even be able to argue that this buggers up the whole claim on the same grounds (though I don't know what the case is when the bare minimum requirements are in the agreement, as here; it may just mean they can't apply clause 7).

 

If you haven't received them, you need to demand the T&Cs urgently, along with the Default Notice supposedly issued by GE Capital. They have to produce it as they have referred to it in the PoC. There's every possibility it will be invalid, so we must see it.

 

You must also ask for proof of the assignment, ie. sight of the DEED of assignment. Their paperwork is usually OK, but you never know what you might find. And boy will it annoy them...

[jaznh]

Many thanks, DonkeyB. We greatly appreciate your comments.

 

Firstly, we have had statements sent us from Santander, going back to April 2008. The statement dated March 2009 is from GE Money; after which the next statement is for June, from 'Santander'. There is also a missing statement from August 2008. And no, they have never issued a 'statement of account' after they had become the 'owners' of the account.

 

As regards the agreement, the only documents we've received are those posted above (& the statements I mentioned), viz., no T&C's. And we have also never seen any DN or a DEED of assignment.

 

Any thoughts? Many regards & best wishes, JnH

[DonkeyB]

You need to see the T&Cs and the DN. These are crucial. They are relying on them in the PoC, so that makes them central to the claim - destroy their evidence point-by-point and show they have made statements they cannot prove are even probable, let alone likely.

 

Make that clear to the mediator!

[jaznh]

Hello again, so I have to admit to feeling a little bit nervous now.

 

After my last conversation with the mediator, she basically was saying that there is no relevancy to the mediation, since we couldn't come to an agreement. As this was the case, she said there would probably be a court case in either March or April; & she gave me a feeling that she wasn't all that impartial, since she said that if I was happy to go to court, why agree to mediation?

 

She did also say that she would inform the claimant's solicitor that they still haven't provided the DN, DoA or the agreement along with its T&C's; but who knows if they will even now comply? There's no evidence that they have any intention of doing so!

 

So, if they still refuse to provide copies of these documents, should we pursue the 'draft order for directions' supplied by pt2537 for non-compliance; or do I need to think about an embarrassed defence for the case itself?

 

Any advice would be much appreciated. Many thanks & regards, JnH

[DonkeyB]

The important thing here is that the mediation process has been stalled by the claimant who has failed to supply the documents required so that mediation can actually begin.

 

There is no fault with your actions.

 

To cover your back, I would suggest you write a letter to the mediator to this effect, and copy it in to the court. Make it absolutely clear that the claimant has repeatedly failed to come to the table with the documents, and that you remain amenable to mediation.

 

Also state that should the mediation fail due to the claimant's inaction, you will request exacty the same documents through the AQ/directions process, which you believe would be a waste of the court's time caused by the claimant's inaction.

 

Maybe you should copy it in to the claimant too - I'll leave it to a wider head to advise on whether you need to do this.

[jaznh]

That's excellent - thanks again DB.

Not really sure how to 'copy it in to the court'. Do you mean just take it down & ask for it to be filed with the rest of the court's papers? In regard to the AQ, we previously filed one with the court, & then mediation was ordered /B] by the judge. Does this mean we will have an opportunity to put another AQ in?

 

Also, don't really know about filing this letter you speak of with the claimant - could anyone else advise? It would be yet again much appreciated.

Regards, JnH.

 

PS - As I write this, we just received a letter from 'hmcs' saying 'the court will now be advised that this claim needs to be listed before a judge...' It also refers to 'directions' which can influence the judge's decision in regard to taking documents or witnesses evidence. Anyone help us with how to proceed? Many thanks, JnH

[DonkeyB]

Wider head? I meant 'wiser' of course.

 

Won't be another aq, no. It's just a case of making your points to the court re mediation and the failure of the claimant to come to the table.

 

Can you tell us exactly what the letter from the court says? If it is suggesting you can request further directions, then all well and good.

[jaznh]

Just trying to post the letter.....

 

Can't post it, but it does seem as if we will be able to introduce documents or witness evidence:

 

It says: "It is very important that you comply with these directions as, if you do not, the judge can decide not to take a document or a witness's evidence into account..." It then speaks of hearing from the court within the next 14 days..

Any advice appreciated. Regards, JnH

Edited March 1, 2010 by jaznh
Further details...

[supasnooper]

Please can you post up the contents of the latest Court letter or type up the contents.

[jaznh]

Thanks again snoops - does the above post (#91) have what you need?

[supasnooper]

What is posted doesn't make sense to me......and I'm sure to others.

 

Please can you type out the contents of the letter ... no need for the court address, your address etc.

 

We cannot advise correctly if we don't have the full facts.

[DonkeyB]

Agree snoops. But it sounds like a very unclear court order!

[jaznh]

OK - Sorry guys! Here is the letter in full:

 

'Thank you for using the SC Mediation Service on 4th Feb 2010.

 

I am sorry that the case was not resolved through mediation.

I hope, however, that you found it helpful & that the time spent has given both of you a greater understanding of the other's point of view.

 

The court will now be advised that this claim will need to be listed before a judge. You should soon receive an order from the court (if you haven't already - We have received a letter from the judge who ordered mediation which I'm yet to check) telling you when this will be & telling you what you need to do between now & then (these instructions are known as "directions".) It is very important that you comply with these directions as, if you do not, the judge can decide not to take a document or a witness's evidence into account. If you do not receive the hearing date & directions within the next 14 days please contact the court. The Court Service produce a leaflet called "The Small claims track" (EX307) & you may find it useful to read this before the hearing You can obtain a copy from your local court or ... hmcourts-service.gov.uk

 

If you require legal advice before your hearing there are two organisations that provide free, confidential & independent legal advice for those with residence...(it then lists Community Legal Advice - free legal advice for residents of England and Wales, paid for by legal aid & http://citizensadvice.org.uk)

 

If between now & the hearing you wish to make a further offer to settle the case please put the offer in writing to the other party. Mark the letter "Without Prejudice" & ask the other party to reply within 7 days.., bearing in mind the hearing date.

 

We are continually looking to improve the service we offer which is why I ask you to complete customer service survey...."

 

Apart from greetings etc, this is the letter in full - What do you think?

[DonkeyB]

"I hope, however, that you found it helpful & that the time spent has given both of you a greater understanding of the other's point of view"

 

Er... what point of view? They never came to the table. For your own good, you need to make this clear by responding to whoever sent this letter, as I outlined earlier, and copy to the court.

 

Must be a bog standard letter, but if this goes to the judge he will assume both parties were in some sort of discourse that failed. You must make sure the court is aware of the real facts.

[DonkeyB]

Oh, and as for the customer survey - tell them their service has provided you with no advancement of the case through no fault of your own, and that you believe their representations to the court do not fairly reflect the failure of the claimant to engage. You might want to copy that to the court too, so the judges might learn how useless the system can be.

 

If you don't respond to the mediation service's statements, you will be at a disadvantage and the claimant will roll on with impunity.

[DonkeyB]

So to go on, but...

 

It may seem trivial, but the mediation jobsworth is doing you no favours. They did initially put pressure on the claimant to come up with documents, but they have failed to push for this to keep the mediation process going.

 

You MUST work hard to respond to everyone in the loop to make the facts clear and to help strengthen your case, especially when it comes to costs.

 

Make it clear you remain open to mediation, but make the point that you could never make an offer to settle a claim of which you have neither proof nor detail (do this because the mediator has referred to your making a 'further offer' - what offer? There has been none).

 

In other words, refute or agree with the points in the mediator's letter one by one.

[jaznh]

I also had a phone conversation with the mediators 'support officer'. She implied there would be no point in contacting her. How would you suggest I should deliver the letter to the mediators office - will I do it recorded?