HP Trouble - Claim form issued.

[gareth19]

Can you give a link to your defence

 

good work on the apr

 

Hi, I have used the defence which was suggested by emandcole and it can be found on page 3 of this thread and initially concentrates on the fact that their POCs do not meet the relevent criteria. We are starting with that first and then seeing what they come up with next. I was advised not to rush into defending myself too much yet as it is their job to prove the debt is correct and not mine to prove it isn't. As I said though unfortunately I have had no response from Morgan's with regards to the CPR31.15 letter or my defence letter (both were sent on 9th Sept by recorded). The date is fast approaching for my aq to be sent in so just wondering how best to fill it in without any more word from Morgan's.

[foolishgirl]

What form have they sent for the AQ - N149 0r 150?

 

Re. your CPR31.15 - if they haven't replied in the time frame you gave them you should make an app to the court for an order to make them comply. This should be done before your AQ if your AQ is N149 as CPR31 does not apply to SC. Your alternative is to apply for directions with the AQ but the court might not issue them so IMO the app is probably the best way forward.

[gareth19]

What form have they sent for the AQ - N149 0r 150?

 

Re. your CPR31.15 - if they haven't replied in the time frame you gave them you should make an app to the court for an order to make them comply. This should be done before your AQ if your AQ is N149 as CPR31 does not apply to SC. Your alternative is to apply for directions with the AQ but the court might not issue them so IMO the app is probably the best way forward.

 

Hello the form is a N150. When you say I should make an app to the court, what exactly does that mean? Also do I make this app to the court and forget about sending the aq in by the 20th September now?

[emandcole]

HI, FG is bang on, you can ask the court to order the disclosure of the documents you need and the upside is that doing it through the AQ means its free. However, making a sole application through the court is far more forceful and shows the other side that you're not going to muck about.

 

Can't recall what form you need but if you go into the court and state that you wish to make an application to force the claimant to provide the documents you need they'll know what to give you. The application will be about £40 and if the court accepts it (no reason not to) there'll be another £35 to pay to get you a hearing with the judge and the other side who should produce all you need on the day.

 

Of course if they don't they'll quickly be in trouble and you can hope for them discontinuing and then use that to apply for your wasted costs. As for the AQ you can still send that in, the hearing you pay for will kind of take over and the claim will progress based on the actions of the claimant and what they provide.

 

The AQ is there to help the judge decide how to deal with the claim, if the claimant has provided dodgy documents or even failed to provide them on the day this is likely to dictate what the court does as they'll send a directions order telling each side what it expects.

 

This could be an order to force the claimant to provide you and the court with whatever documents they didn't provide during your hearing, failure to do so eventually being the claim getting dismissed for example.

 

Most importantly for now you've told the court what you need and you've asked the claimant to respond and they haven't. You're off to a good start.

[gareth19]

Thanks for that. So I will now obtain the form from the court to order Morgan's to disclose the documents. Also I will send of the aq.

[gareth19]

Just called the court and they didn't have the foggiest idea of which form I need. He was acting like I was talking in some sort of foreign language. He said I could try N244 but he isn't convinced that's the right one.

[postggj]

To be honest

 

if the sols have not produced the info under a cpr 31.14 request, i would aply for a strike out vis a n244 for abuse of cpr

AND PUT AN UNLESS ORDER WITH IT FOR DIRECTIONS

 

down side is it will cost you £75 but wil be delt with double time by the judge

 

you will get the fee back

[gareth19]

To be honest

 

if the sols have not produced the info under a cpr 31.14 request, i would aply for a strike out vis a n244 for abuse of cpr

AND PUT AN UNLESS ORDER WITH IT FOR DIRECTIONS

 

down side is it will cost you £75 but wil be delt with double time by the judge

 

you will get the fee back

 

Cheers. Do I word it exactly like that? (A strike out for abuse of CPR)

[postggj]

What was the date of the claim

 

when did you send the cpr request in

 

have they responded at all to the request

 

what stage are you at in court at the moment

[gareth19]

What was the date of the claim

 

when did you send the cpr request in

 

have they responded at all to the request

 

what stage are you at in court at the moment

 

I sent in a CPR31.14 request on 31st August and received an unstaisfactory response ( a copy of the letter is uploaded on this thread). I then sent a CPR31.15 request on 9th September giving them 7 days to comply and have received nothing

[postggj]

Whe or has the aq been issued yet

[gareth19]

Whe or has the aq been issued yet

 

yes the aq was issued on 1Sept but I was advised to CPR request them again before I send back the aq. The aq must be in by 20th Sept and have not had a response to CPR request

[postggj]

The only real option then is to ask for an unless order in the aq

 

make up a draft of directions to say that the sols have to produce the docs with in seven days or the case will be thrown out for abuse of cpr

[gareth19]

A new twist. I have this morning received a letter from Morgan's along with their aq. They made no mention however of my CPR requests I have made to them. The letter says "the claimant requests a stay in proceedings in order for the parties to attempt to narrow the issues - we will endeavour to give advance disclosure of our evidence in due course". Also as you know I requested they amend their POCs as advice on here said that they did not meet Civil Procedure Rules. In their aq they state " the claimant intends to amend the Particulars of Claim, however, before the claimant makes such an application, a stay in this matter is requested in order for the parties to attempt to narrow the issues in this case". They also state in the aq "Currently, in light of the Defendant's defence, it may be that the quantum of this claim has been incorrectly stated and it is contended by the claimant, pursuant to CPR Part 1 Rule 4(2) (a) that the parties ought to be allowed to attempt co-operation in this regard in order to ensure that this case is actively managed.

 

Now if anyone could translate this into English I'd be most grateful but from where I'm standing it appears they are preparing for a massive back down unless I have read the signs wrong. The fact they are changing their POCs in 1-up to us I think. Any advice regarding this latest letter is as always most appreciated

[postggj]

THEY HAVE FU--ED UP AND THEY KNOW IT

 

APPLICATION NOTICE TO THROW OUT THERE CALIM SEEMS IN ORDER UNDER FAILURE OF CPR

 

LEAVE THIS WITH ME FOR A FEW DAYS AND ILL DRAft up an order for your aq to return

 

scared rabbit me thinks:lol:

[postggj]

me thinks they have been reading this thread

 

ha

ha

ha

[gareth19]

cheers. I sent back my aq yesterday as they have to be in Monday and I enclosed the condition that they must comply with CPR as you suggested.

[postggj]

no worries

 

ill do an ammendment for you to take or send to the court

 

this way i save you £75 for an n244 application

[gh2008]

HI, FG is bang on, you can ask the court to order the disclosure of the documents you need and the upside is that doing it through the AQ means its free. However, making a sole application through the court is far more forceful and shows the other side that you're not going to muck about.

 

Can't recall what form you need but if you go into the court and state that you wish to make an application to force the claimant to provide the documents you need they'll know what to give you. The application will be about £40 and if the court accepts it (no reason not to) there'll be another £35 to pay to get you a hearing with the judge and the other side who should produce all you need on the day.

 

Of course if they don't they'll quickly be in trouble and you can hope for them discontinuing and then use that to apply for your wasted costs. As for the AQ you can still send that in, the hearing you pay for will kind of take over and the claim will progress based on the actions of the claimant and what they provide.

 

The AQ is there to help the judge decide how to deal with the claim, if the claimant has provided dodgy documents or even failed to provide them on the day this is likely to dictate what the court does as they'll send a directions order telling each side what it expects.

 

This could be an order to force the claimant to provide you and the court with whatever documents they didn't provide during your hearing, failure to do so eventually being the claim getting dismissed for example.

 

Most importantly for now you've told the court what you need and you've asked the claimant to respond and they haven't. You're off to a good start.

 

Back off my hols

 

Totally agree with FG & emandcole

 

You will not be able to refuse the stay as it will deemed as you being unreasonable.

 

BUT you *can* make an app for an unless Order for them to comply with your CPR request

[gareth19]

well I sent my aq before I received their's and I said I did not request a stay as they have had ample time (8 years) to sort this out but if they want a stay then I'll go along with it. What happens now then in these "stays?". Will someone contact me to try and iron out the differences etc?

[emandcole]

Depends really. A stay is a kind of limbo, typically as something has arisen that needs sorting out further and the time scale is perhaps uncertain. As the defendant however if you've done everything as required and its the claimant mucking about you could consider an order to hurry them along a bit, state the stress of the claim is adverse to your quality of life, health etc and that you require the claimant to get their act together. Give them their stay so you are perceived as helpful (they'll get it anyway) and once they've had reasonable time to do whatever it is they need to do consider contacting the court.

 

Not sure how aggressive you should be here but Post will know I'm sure.

[gh2008]

If I've done this correctly the APR charged is actually higher by 0.4% and if this is the case the agreement is wholly worthless. APR accuracy states that the APR you pay can be up to 1.0% lower than the rate advertised, however the rate you pay cannot be more than 0.1% than that advertised as if it is you're basically being ripped off.

 

Anyone any good with APR calcs to verify the above is right?

 

Just a point here

Misstating the APR does NOT make the agreement unenforceable.

You have to show prejudice - i.e. how their misstating the APR caused problems (and I think in this case you could well do that)

 

But your figures are right the APR is actually 21.5%

This makes the agreement improperly executed and therefore to enforce the claimant needs to make an application for an enforcement order.

 

It would be very easy to show well over £1k prejudice against you because of the APR issue alone. and then of course there are your costs ....

[gh2008]

IMHO it would also be a good idea to invest £10 in a SAR to Online Finance.

[postggj]

just a point here

misstating the apr does not make the agreement unenforceable.

You have to show prejudice - i.e. How their misstating the apr caused problems (and i think in this case you could well do that)

 

but your figures are right the apr is actually 21.5%

this makes the agreement improperly executed and therefore to enforce the claimant needs to make an application for an enforcement order.

 

It would be very easy to show well over £1k prejudice against you because of the apr issue alone. And then of course there are your costs ....

 

 

you are corect

 

the variance on apr is 1 % and 0.1 %

 

mistating the apr is a prescribed term and the court is then prohibited from making an enforcement order

[gh2008]

Could you please show me where the APR is a prescribed term .....

 

Interest rate is not even a prescribed term on fixed term loan