Debenhams Store Card-defence - **SUCCESS - CLAIM STRUCK OUT**

[MONTY]

Sorry! My bloody fault again!

Didn't read the thread properly:(

 

Yes, you MUST acknowledge receipt of the claim, and that you will be defending the full amount, if that is your decision?

 

You are going to need help submitting your defence, so cerburusalert, diddy dicky will be better experienced in coaching you through this process, as are plenty of others, but memory is not my strong point!

 

If you need urgent assistance, then you can click on the red triangle,I

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Yes, I intend defending. I have nothing to loose.

 

I am ready with my CPR request but do not know when to send it!!! I have looked at it again and can not see that it would disadvantage me by sending it now.

 

I will give it twenty four hours and see what advice comes in.

 

Thanks for all your assistance to date Bazooka. Hopefully i will get through this and be able to advise others.

 

M

[Bazooka Boo]

Yes, I agree Monty, I don't know of any reason why you shouldn't fire it off ASAP??

 

Have you acknowledged receipt of the claim? You can do that online, which allows you to do so up until the 11th hour.

 

Boo;)

[MONTY]

Yes, I agree Monty, I don't know of any reason why you shouldn't fire it off ASAP??

 

Have you acknowledged receipt of the claim? You can do that online, which allows you to do so up until the 11th hour.

 

Boo;)

 

OK. CPR request going in today using the same wording in my earlier post. The detail of the dodgy DN I will save for my defence. I will submit my acknowledgement on line later this week.

[MONTY]

OK. CPR request going in today using the same wording in my earlier post. The detail of the dodgy DN I will save for my defence. I will submit my acknowledgement on line later this week.

 

If they ignore my CPR 31.14 request can I submit an N244 application requesting the court order them to disclose under CPR 18?

 

If they don't provide the documents then surely I can't defend a claim that lacks crucial detail - would this then alow me to ask the court to strike out?

[MONTY]

If they ignore my CPR 31.14 request can I submit an N244 application requesting the court order them to disclose under CPR 18?

 

If they don't provide the documents then surely I can't defend a claim that lacks crucial detail - would this then alow me to ask the court to strike out?

 

Can anyone help me with this please? Do I ask the court to order them to provide required documentation under CPR 18 or do I write to the claimant?

[bradfordlad]

Hi monty,

in my case against Bank of Ireland, I submitted an embarrased defence as they didn't reply to my CPR31.14 request, and I also threw in a bit (too much?) about a defective DN.

 

The thread is here http://www.consumeractiongroup.co.uk/forum/legal-issues/239519-urgent-help-needed-bank-3.html#post2784632 - I haven't submitted it yet (tomorrow is D Day!) but I think that's how it'll stay now.

 

good luck!

[MONTY]

Hi monty,

in my case against Bank of Ireland, I submitted an embarrased defence as they didn't reply to my CPR31.14 request, and I also threw in a bit (too much?) about a defective DN.

 

The thread is here http://www.consumeractiongroup.co.uk/forum/legal-issues/239519-urgent-help-needed-bank-3.html#post2784632 - I haven't submitted it yet (tomorrow is D Day!) but I think that's how it'll stay now.

 

good luck!

 

Briliant! Well done and good luck. I particularly like the Practice Direction

Service of Documents - First and Second Class Mail bit. Although my dodgy DN does not give an action date (it just states 14 days) in this particular case, the practice direction info. will be very useful with the others I have.

 

I will be watching your thread with interest. Fingers crossed for you.

 

M

[MONTY]

Having researched this site, I think I have established that a CPR 18 request is only required for documents not mentioned in the Particulars Of Claim (POC). Is this correct?

 

I have prepared a letter ready to go out if they do not respond to my originial CPR 31 request as follows:

 

Dear Sir,

 

Re: xxxxxxxx v xxxxxxxxxxxxxx Case No: xxxxxxxxxxxxxxxxx

 

CPR 31.14 Request/Reminder

 

 

Further to my CPR 31.14 request, I note that you have failed to disclose the vital documents mentioned in your POC and required by myself by letter dated xxxxxxxxxxxxxxxx. I have enclosed a copy of my original disclosure request

 

Again, 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 no more than 5 days of receiving this letter.

 

I would remind you that 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.

 

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.

 

Again, 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

Edited February 24, 2010 by MONTY
spelling

[MONTY]

Unfortunately, I have not had many responces to my previous posts. So, I am 'flying blind' and reliant on what I can gleen from other threads. I have to submit my defence on Thursday and intend on submitting the following. If anyone with experience of these matters does have the time and inclination to provide any constructive criticism I would be indebted (no pun intended!) to them.

 

In the Northampton (CCBC) County Court

Claim number: XXXXXXXXXXX

 

 

 

 

Between:

CL Finance Ltd - Claimant

 

and

 

 

XXX XXXXXXXX XXXXXXX - Defendant

 

 

 

 

Defence

 

1. I XXXXXXXX XXXXXXX of X XXXXXXXX XXXX, XXXXXXX, XXXXXXXXXXX XXXX XXX am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

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

 

a) 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;

b) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding 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 default notices issued or any other matters necessary to substantiate the claimants claim.

c) 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. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16, paragraph 7.3.

d) 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. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

5. Further to the case, on the XXXX February XXXX I requested the disclosure of information pursuant to the Civil Procedure Rules part 31.14, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default notice.

 

6. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974. I am also unable to assess the validity of any Default Notice purported to have been served on me.

 

7. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA and 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.

 

8. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (amendment) Regulations 2004 (SI 2004/3237)

 

9. It is averred that the default notice referred to in the particulars of claim does not allow the notice and the defendant puts the claimant to strict proof that the prescribed timeframe has been given. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed 14 days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time).

 

10. A default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The amount detailed in the Claimant’s claim is incorrect.

 

10. Without a valid default notice it could be inferred that the bringing about of a County Court Judgement without first seeking remedy via a default notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the CCA.

 

11. Furthermore, the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. I received the Notice of assignment, on 3rd February 2010 and I note the date of issue on the claim as the 1st February 2009 which suggests that the notice of assignment, which must be served before the assignment if it is to be effective in law, was not posted before the claim was filed, so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice

 

12. Consequently due to the claimant’s failure to supply the documents required under the Civil Procedure rules and the fact that the claimant has failed to sufficiently particularise the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

13. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

 

14. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the Courts permission to amend my defence accordingly if such paperwork is presented to the court.

 

15. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in 1998, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

[angel_1]

hiya monty

 

just came across your thread, wanted to wish you well, but i didnt know if your knew but if you pressed the triangle button it will alert a site member and someone will be able to help you im pretty sure, (( have now read the full thread and someone already mentioned the triangle )) oops

 

anyway with my post ive bumped it up to the top and so hoping it gets noticed for you too - sorry i dont want to give any wrong advice to you as im still in the mix of battling my own battles and i rely on my own understanding of what i find out and from others here who have been very knowledgeable to me

 

hope you get the proper info for your concerns resolved this eve - will check in later to see if i can help in any other way

 

keep positive laters angel x

Edited March 2, 2010 by angel_1

[bradfordlad]

Hi there monty - no before I start I do not pretend to be anything like the experts on this forum, but I understand what its like when time is short, so here's my observations of your defence thus far:

 

9. It is averred that the default notice referred to in the particulars of claim does not allow the notice and...... This doesn't seem to "flow" correctly. you say it doesn't allow the notice, but what notice? You've not mentioned anything about the required 14 days plus postage AT THIS POINT.

 

You have two point 10's.

 

In the second point 10, you say "contrary to the CCA" - I would change this to the "Consumer Credit Act 1974" if this is what you mean.

 

Does point 15 need to be in at this stage?

 

I may be picky or plain wrong, but as I say, I know what its like when you've been staring at the screen for 4 days - easy to miss stuff.

 

As suggested above, click the red triangle next to your post & a member of the site team will be along with (better) advice soon.

 

Good luck!

 

BL

[MONTY]

Thank you Bradfordlad and Angel 1 fro your advice and words of encouragement. Here is my second attempt at a defence:

 

In the Northampton (CCBC) County Court

Claim number: xxxxxxxx

 

 

 

 

Between:

CL Finance Ltd - Claimant

 

and

 

 

xxx xxxxxxxxx xxxxxxxxxx- Defendant

 

 

 

 

Defence

 

1. I xxxxxxxxx xxxxxxxx of x xxxxxxxx xxxxx, xxxxxxxx, xxxxxxxx xxxxx xxx am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

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

 

a) 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;

b) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding 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 default notices issued or any other matters necessary to substantiate the claimants claim.

c) 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. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16, paragraph 7.3.

d) 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. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

5. Further to the case, on the xx xxxxxxxx xxxx I requested the disclosure of information pursuant to the Civil Procedure Rules part 31.14, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default notice.

 

6. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974. I am also unable to assess the validity of any Default Notice purported to have been served on me.

 

7. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974, and 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.

 

8. The prescribed format for such a document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (amendment) Regulations 2004 (SI 2004/3237)

 

9. It is averred that the default notice referred to in the particulars of claim does not contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'). The defendant puts the claimant to strict proof that the prescribed timeframe has been given. Under section 88(2) of the Consumer Credit Act 1974, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Merely stating the default notice would allow 14 days for any required action is non-compliant with the requirement of the 1983 Regulations owing to the need to specify a date (rather than an interval of time).

 

10. A default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The amount detailed in the Claimant’s claim is incorrect.

 

11. Without a valid default notice it could be inferred that the bringing about of a County Court Judgement without first seeking remedy via a default notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the Consumer Credit Act 1974.

 

12. Furthermore, the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. I received the Notice of assignment, on xxx xxxxxxxx 2010 and I note the date of issue on the claim as the xxx xxxxxxxxxx 2010 which suggests that the notice of assignment, which must be served before the assignment if it is to be effective in law, was not posted before the claim was filed, so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice.

 

13. Consequently due to the claimant’s failure to supply the documents required under the Civil Procedure rules and the fact that the claimant has failed to sufficiently particularise the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

14. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

 

15. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the Courts permission to amend my defence accordingly if such paperwork is presented to the court.

Edited March 3, 2010 by MONTY
inadvertant disclosure of personal data

[angel_1]

hiya monty

 

well im bumping up again for you with my post, did you alert the site team, to me the defense looks good but im sure a more experienced cag member with more legal knowledge glancing it over may advise you much better than my own humble opinion

 

did you click on the triangle for help?

 

anyway if all fails only you can make the decision to run with it,

 

good luck hope it works out for you

 

will look in again in the morning nite angel x

[MONTY]

hiya monty

 

well im bumping up again for you with my post, did you alert the site team, to me the defense looks good but im sure a more experienced cag member with more legal knowledge glancing it over may advise you much better than my own humble opinion

 

did you click on the triangle for help?

 

anyway if all fails only you can make the decision to run with it,

 

good luck hope it works out for you

 

will look in again in the morning nite angel x

 

Thanks Angel 1,

 

I ran out of time so went with it.

 

Having submitted my defence, Howard Cohen have written:

 

" We acknowledge receipt of your letter dated xx xxxxxxxx 2010 in which you have made a request under CPR 31.14 for documentation mentioned in our Particulars Of Claim.

 

Please note that as a bulk issuer we are unable to store the necessary documents on site and we are currently in the process of retrieving the documents requested.

 

Therefore, please accept this letter as our agreement to a general extension of time. Once we have provided you with the documents requested we will grant a further 14 days for you to submit your defence."

 

 

So, what happens now? I guess I sit tight and wait their submissions and then formulate a new defence around whatever they send to me.

 

M

[angel_1]

hiya monty

 

im not sure if you should just wait for them or let the court have a copy of their letter

 

im learning all this legal stuff as i come across stuff and if i dont know something i ask and ask lol - what ive learnt is not to totally trust creditors with their "nice" approach:lol:

 

im a bit of a tenacious old bird and i just am a little cynical with all this nice responce so i m hoping someone of the legal section will advise you if it is okay to wait or if you have to do something to protect yourself if you get what i mean:wink:

 

anyway will look in later tomorrow for any updates

 

keep positive laters angel x

[workaholic duck]

I got a letter the same as yours. As I understand it, only the courts can extend the time, not the creditor. It's their sneaky way of hoping you'll miss the court deadlines and they win by default.

Adhere only to court directions.

I'm a bit ahead of you. Filed an embarrassed defence, no docs whatsoever. Got a letter from courts, acknowledging, said to wait 28 days. Waited - wellover 45 days - then got an AQ. Cohens still going ahead despite no docs! Filed the AQ, with brief explanation again of being unable to defend w/o docs. Included a Draft order Directions and a letter to the judge, explaining simply how my case is being frustrated.

Still hoping for it to be struck out but who knows?

Just remember, they are NOT nice and want their money, CCJ's etc. in any way possible.

[MONTY]

Thanks Angel 1,

 

I ran out of time so went with it.

 

Having submitted my defence, Howard Cohen have written:

 

" We acknowledge receipt of your letter dated xx xxxxxxxx 2010 in which you have made a request under CPR 31.14 for documentation mentioned in our Particulars Of Claim.

 

Please note that as a bulk issuer we are unable to store the necessary documents on site and we are currently in the process of retrieving the documents requested.

 

Therefore, please accept this letter as our agreement to a general extension of time. Once we have provided you with the documents requested we will grant a further 14 days for you to submit your defence."

 

 

So, what happens now? I guess I sit tight and wait their submissions and then formulate a new defence around whatever they send to me.

 

M

 

Thanks for the input Angel & Workaholic,

 

As my defence was filed before the latest letter from Howard Cohen I am at this stage a little unsure of their tactics.

 

I received today a letter from the court acknowledging my defence dated the day before the Howard Cohen letter.

 

The court letter says:

 

"I acknowledge receipt of your defence. A copy is being served on the claimant (or claimants solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen. Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can take will be to apply to a judge for an order lifting the stay."

 

My question is -from what date do I start counting down the 28 days? Do I assume my defence as 'served' five days after filing with the court in the same way the POC was deemed 'served' five days after it was filed?

 

M

Edited March 9, 2010 by MONTY
spelling

[workaholic duck]

I am only learning as I go along but, in my case, I waited - expecting the case to be 'stayed' after around 40 days - no such luck. After about 46 days I got the AQ from the courts. Therefore, I am guessing, the courts obviously accepted your late defence in the same way (or, do they ever adhere strictly to dates??). Also, I think you'll have to wait, same as me, to be informed of what happens next.

When I phoned the court they told me that Cohens wish to proceed. I queried how they could, w/o any docs. The clerk said they are in the dark, especially with bulk issues/ online filing, as there are no docs to be seen.

She advised, in my case, to write to the judge and enclose a Draft order Direction (I got a copy from this site).

Today, I got my court hearing date, together with other dates for skeleton legal arguments to be filed etc. AND a date, 14 days from the letter, for Cohens to come up with ALL docs I requested. If not, I shall apply for it to be struck out.

I'm guessing that my experience is pretty average, so hope it helps you with what to expect.

Please remember, though, DCA's are NEVER nice!! On the other hand, the courts do seem very helpful.

Good luck and don't let Cohens win by default!

[MONTY]

I am only learning as I go along but, in my case, I waited - expecting the case to be 'stayed' after around 40 days - no such luck. After about 46 days I got the AQ from the courts. Therefore, I am guessing, the courts obviously accepted your late defence in the same way (or, do they ever adhere strictly to dates??). Also, I think you'll have to wait, same as me, to be informed of what happens next.

When I phoned the court they told me that Cohens wish to proceed. I queried how they could, w/o any docs. The clerk said they are in the dark, especially with bulk issues/ online filing, as there are no docs to be seen.

She advised, in my case, to write to the judge and enclose a Draft order Direction (I got a copy from this site).

Today, I got my court hearing date, together with other dates for skeleton legal arguments to be filed etc. AND a date, 14 days from the letter, for Cohens to come up with ALL docs I requested. If not, I shall apply for it to be struck out.

I'm guessing that my experience is pretty average, so hope it helps you with what to expect.

Please remember, though, DCA's are NEVER nice!! On the other hand, the courts do seem very helpful.

Good luck and don't let Cohens win by default!

 

Thanks Workaholic,

 

Can you point me in the direction of an Order of Direction template or can you copy me yours? I shall follow your lead and submit on the day I have calculated the 14 days expire

 

M

[workaholic duck]

This link is so helpful and easy to follow:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

I based my AQ on this (below) and copied the Draft Order for Directions, leaving the date blank for the courts to fill in. Not sure where I found it - on the site somewhere! I read so much and when I come across relevant info I bookmark it. I think it's a good idea to tweak these 'templates' into your own words. I'm sure judges don't expect us to know the law like they do!

It looks like I've copied 2 similar versions. Anyway, I just picked out the appropriate bits relating to my case and tried to write it as I understood the law and what I've received so far - which is NOTHING! Even the OC ignored my requests for nearly a year, which is how I've got to this stage. Instead of answering my questions they sold my a/c....thankfully I kept, filed and dated all their threats and all my letters with their useless replies....so we shall see what happens.

Section G - 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.

 

A.On xx xx 2009, I forwarded a request for information pursuant to the Civil Procedure Rules Part 31.14, for a true copy of the agreement, default notice, assignment, and terms of the agreement, mentioned in the Particulars of Claim.

 

B.On xx xx 2009 I forwarded a request for information pursuant to the Civil Procedure Rules part 18.

 

C.On xx xx 2009 I forwarded a request for information pursuant to the pursuant to the Data Protection Act 1988, for a true copy of the agreement, default notice, assignment, and terms of the agreement; and any other document cover under the act, including but not exclusive to: including details of any charges added to the account; the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers, and copies of statements for the entire duration of the alleged agreement.

 

D.On xx xx 2009 I forwarded a request for information pursuant to the Consumer Credit Act 1974 under s.77/78, for a true copy of the agreement.

 

The Claimant partially complied with requests A, C & D; the defendant received no response to request B.

 

Without production of the requested documents, the defendant is at a disadvantage and 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 it will inhibit the courts ability to deal with the case.

Section G

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.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further

 

 

 

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) deliver to the Defendant a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service the original document must be brought to the hearing

© notices of assignment together with proofs of service

(d) the deeds of assignment shall be brought to the hearing

(e) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the small claims track and

 

4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

Hope this helps a bit.

[MONTY]

Thank you. This is really good. I have still received nothing from the other side, but have received my AQ and notice that the case isa being transferred to my local court.

 

I will follow the advice and complete the AQ and submit with a draft order of directions

[workaholic duck]

If your case goes like mine, they will ignore the Draft order aswell.....

I've waited 6 weeks+ - nothing. Wrote to the judge asking for it to be struck out (as the clerk suggested). Got a reply saying,

I interpreted that as it's not worth spending money on.

I still have nothing at all. Waiting to see if they pay the fee, then research my next move. It's farcical what they get away with. Hope yours goes better! Good luck.

[MONTY]

Thank you all.

 

I received today a General Form of Judgment or Order:

 

"Claimant to file and serve a copy of the credit agreement assignment and notice of assignment served on the Defendant"

 

What about a copy of the original agreement and default notice I clearly identified in the AQ and suggested draft order? Should I ask the court to clarify, or would this be seen as out of order?

 

M

[MONTY]

Thank you all.

 

I received today a General Form of Judgment or Order:

 

"Claimant to file and serve a copy of the credit agreement assignment and notice of assignment served on the Defendant"

 

What about a copy of the original agreement and default notice I clearly identified in the AQ and suggested draft order? Should I ask the court to clarify, or would this be seen as out of order?

 

M

 

In responce to the Judgement Order I have received today from Cohen & Co yet another copy of an application form (see previous post and upload) which they profess to be a copy of a valid Credit Card Agreement and a Notice of Assignment. Of note the Notice of Assignment is dated Friday 29th January 2010, the claim was submitted on Monday 1st February 2010. There is no way that I could I received the notice of assignment prior to submission of their claim. Also, I believe it is incumbent on the claimant to try and resolve the situation prior to issuing a claim through the courts.

 

I need time to prepare my defence. Will the court automatically give me time or shoud I ask?

 

Any assistance will be gratefully received!

Edited May 12, 2010 by MONTY
FURTHER INFORMATION

[MONTY]

I have just compared the latest copy of the alleged Notice of Assignment (NoA) with the one I received at the begining of February. The latest one has been significantly altered.

 

The latest has additional paragraphs, one of which states that a claim has been submitted on the same day as the NoA - own goal me thinks!