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Hi all

I have a summons from HFC/Restons dated as issued on 7th May. Obviously I am now running out of time - please don't shoot me down for not acting quicker - but I intend to make requests under cpr 15.5 for extension, cpr 18 for explanation of poc and cpr 31.4 and 31.5 for documents and would love it if someone would comment on my draft letter before posting it tomorrow and am I ok to make all these requests in one go?

Back in 2007, HFC admitted they do not hold the original agreement as it was destroyed. I'm still not 100% sure if DN is as it should be.

If I understand the situation correctly, I won't be submitting a defence but will be asking for a strike out or similar once Restons/HFO cannot provide copy of original doc? This is a copy of the POC

 

POC

The claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about xx/xx/1999 in the sum of 10233.19 inclusive of interest to the date of this summons at 19.8% per annum from xx/03/10 to xx/05/10

 

PARTICULARS a/c no:- xxxxxxxxxxxx

 

DATE ITEM VALUE

xx/03/2010 Default Balance 10010.54

Post Refri Cr NIL

 

 

xx/05/2010 Interest 222.65

TOTAL:- 10233.19

 

Together with:-

interest pursuant to contract at the rate of 543.04 pence per day to the date of Judgment or sooner payment.

 

Signed Restons Solicitors Limited

 

Ok, following great advice from MandM, DD, Colin, Freethemice, Pete & Means2anend, this is a copy of the letter I posted on 02/06/2010 by Special Delivery with guaranteed delivery on 03/06/2010.

 

Restons Solicitors Limited

Trinity Chambers

800 Mandarin Court

Warrington Court

WA1 1GG

 

01 June 2010

Re: HFC Bank Ltd, Claimant

v Gordon P Crompton, Defendant

IN THE Northampton County Court CLAIM NO: 0XO87739

 

CPR 15, 18 and 31 Requests

 

Dear Sir,

 

On 24 May 2010 I received the Claim Form in this case, issued by you out of the Northampton County Court.

 

I confirm I have returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim. Unfortunately, I don’t understand your very brief POC and am requesting further clarification and explanation under CPR 18. I am also making a request that I, or my legal representative, are allowed access to inspect the key document mentioned in your POC, under CPR 31.15 and further, that you provide me with a copy of the same document. I am going to need more time to organise and instruct my defence after clarification of your POC has been received and after viewing the documents you will use in court which is why I am requesting an extension of 28 days to submit my defence.

 

CPR part 18: REQUEST FOR FURTHER INFORMATION

 

Please answer the following questions:

 

1. What do the letters on line 12 (“Post Refri Cr NIL”) of your POC mean?

 

2. Under what authority, and how, is the figure of 19.8% APR interest, quoted in your POC, derived?

 

3. At what APR % rate is the “interest pursuant to contract at the rate of 543.04 pence per day...” quoted in your POC calculated and under what authority?

 

You are required to answer the above request within 14 days of service of the same upon you. However, this will necessitate an extension of time in which to submit my defence.

 

CPR 31.15 REQUEST TO INSPECT DOCUMENTATION & TO RECEIVE A COPY

 

Prior to the issue of proceedings I had delivered several requests for the production of the agreement mentioned in the Claim Form and on which you rely.

 

Please treat this letter as my request made under CPR 31.15 to inspect the agreement you disclosed in your POC. Further, I request a verified and legible copy of the agreement mentioned in your Particulars of Claim.

 

1. the agreement. “... a contract dated on or about 13/11/1999 ...” You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

 

You should ensure compliance with your CPR 31 duties and ensure that the document I have requested is copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the original of the document 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.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.15 request.

 

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.

 

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.

 

 

CPR 15.5 REQUEST FOR EXTENSION TO ORGANISE DEFENCE

 

I request an extension of 28 days to instruct and organise my defence.

Please note that if you should fail to comply with these requests, 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

 

Manchestman

 

Edited by manchestman
Revised a draft letter following advice received

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Hello Manchestman. Just a small point.

 

The POCs are, as you noted, pretty vague. But your 31.14 can only ask for docs mentioned in the POCs. You are asking for DN and TN, or is there a bit on the POCs that you haven't put up?

 

When is your latest return date for defence?

 

M

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Hi M, Thanks for looking this over for me and for your advice. I suppose I am pushing it a bit to ask for a default notice when I'm saying they mention it by implication rather than explicitly, when the poc states what I owe as a "default balance". Similarly with my request for the termination notice (the poc states "overdue balance").

But rather than fall foul of rules, I agree it's better to now ammend my letter to a simple request for the agreement under 31.14 and inspection of the agreement only under cpr 31.15.

The POC are exactly as written in first post. If the issue date is 7th and 5 days allowed for service, then if a defence is submitted it has to be by June 9th (I think). So you can see why I am in a hurry to get my requests off by special delivery and try to get an extension.

 

If it does come to me having to submit a defence, mine is a very complex case - not worth discussing here yet until the issue actually arises.

 

regards and thanks, G

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Hi M, Thanks for looking this over for me and for your advice. I suppose I am pushing it a bit to ask for a default notice when I'm saying they mention it by implication rather than explicitly, when the poc states what I owe as a "default balance". Similarly with my request for the termination notice (the poc states "overdue balance").

But rather than fall foul of rules, I agree it's better to now ammend my letter to a simple request for the agreement under 31.14 and inspection of the agreement only under cpr 31.15.

The POC are exactly as written in first post. If the issue date is 7th and 5 days allowed for service, then if a defence is submitted it has to be by June 9th (I think). So you can see why I am in a hurry to get my requests off by special delivery and try to get an extension.

 

If it does come to me having to submit a defence, mine is a very complex case - not worth discussing here yet until the issue actually arises.

 

regards and thanks, G

 

OK. Then time is of the essence. You may be a bit late requesting the extension. If you post it tomorrow and they receive it on Friday that only gives them 5 days to respond including the weekend.

 

It may be a good idea to have an embarressed defence ready to send due to their poorly particularised POC. Just in case :wink:.

 

You'll get the opportunity to request the other docs you require at AQ stage before filing your defence.

 

M

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ALL unsolicited PMs and E-mails should be posted up - Not all on CAG are who they appear to be

 

 

My views are my own. If in doubt, seek professional advice. If I can help though, I will. CAG helped me!!

 

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OK. Then time is of the essence. You may be a bit late requesting the extension. If you post it tomorrow and they receive it on Friday that only gives them 5 days to respond including the weekend.

 

It may be a good idea to have an embarressed defence ready to send due to their poorly particularised POC. Just in case :wink:.

 

You'll get the opportunity to request the other docs you require at AQ stage before filing your defence.

 

M

 

Yes, time is certainly now of the essence! (All my own fault). I actually posted it yesterday by special delivery, so because it's trackable and can be proved delivered, then the 7 days should start from today, meaning they have until Thursday, 10th June to respond - too late for me not to have submitted a defence, unfortunately, So, as you say, I absolutely must submit a defence by next Tuesday, 8th June, to be safe.

I think my timetable should now be: 1/ Prepare an embarrassed defence, ready to submit online with MCOL/Northamtopn court on Tuesday, 8th June 2/ Telephone Restons (solicitors for HFC) on Monday, 7th June, and ask if they agree to my request for extension. If they refuse, submit my embarrassed defence. If they agree, then breathe a sigh of relief and prepare an 'unless ... strikeout' order to be submitted by say, Monday, 14th June to show I have given OP plenty of time?

 

Can you point me in the direction of any embarrassed defence example, please?

 

BTW, I have edited my original letter in the opening post to now reflect what I did exactly send.

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No problem. Will post you up a couple of links this evening. Happy to help where I can :).

 

If they agree to that extension make sure it is all confirmed to you and the court. Don't take their 'word' that it's done.

 

Still unsure of what "Post Refri Cr NIL" actually means. I've had a bit of a dig around and it only seems to pop up on Restons claims! Time will tell no doubt.

 

M

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My views are my own. If in doubt, seek professional advice. If I can help though, I will. CAG helped me!!

 

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Here is an embarrassed defence, hope it helps.

1. I, XXXX of XXXXX make this statement as my defence to the claim brought by XXXXX.

 

2. The claimant’s particulars of claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR, even allowing for the constraints of the bulk issue system.

 

3. No documents supporting the claims in the particulars have been offered and despite two requests to the claimant for further information via CPR 31.14 dated XXX 2009 and XXXX 2009, both sent by recorded delivery, none has been forthcoming and as a result I cannot plead in defence to the claim.

 

4. Without clarification of the claimant’s claim, the defendant is extremely disadvantaged and as the claimant’s claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

 

5. Further to the above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

Statement of truth

 

I believe that the facts stated in this defence are true.

I am the Defendant.

 

Signed:

 

XXXX

XXXX 2009

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Quick point from little old me keep in touch with the court as Halitax tried to sneakily get my embarrased defence thrown out have just had to mess around with a set aside at the moment due to this. The case was still at the Bulk Centre Northampton when this was going on hadnt even gone to AQ yet... not trying to worry you just suggesting a phone call every 4 or 5 days to check what is happening.

"I am no Solicitor but deal with REAL hard case lawyers everyday, this gives me the strength to deal with the lightweight idiots that are thrown at me everyday by DCAS :D"

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No problem. Will post you up a couple of links this evening. Happy to help where I can :).

 

If they agree to that extension make sure it is all confirmed to you and the court. Don't take their 'word' that it's done.

 

Still unsure of what "Post Refri Cr NIL" actually means. I've had a bit of a dig around and it only seems to pop up on Restons claims! Time will tell no doubt.

 

M

Thanks, together with the one by cymruambyth I should be able to make a simple embarrassed defence. No worries, I wouldn't trust them as far as I can spit! The fact that this unexplained phrase is on the POC should help support the embarrassed defence.

Here is an embarrassed defence, hope it helps.

Yes, it certainly does! Cheers!

Quick point from little old me keep in touch with the court as Halitax tried to sneakily get my embarrased defence thrown out

This is invaluable advice - seemingly obvious now, but easily overlooked, thanks for the heads up and sorry for your own troubles..

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I'm at work at don't have time to read the full details BUT

 

if you are not going for a full 'dismiss' the claim then I would suggest that you dispute the contractual interest and the other interest

 

In the absence of a copy of the original agreement you are completley unable to audit their claim for interest

 

Any generic copy of an agreement that is provided and claimed to be the norm still does not enable you to AUDIT these charges and this is something that you have a legal right to be able to do.

 

Mr Duff partially defended an HFC/Restons claim on this basis and won.

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Try here (post 33) >>>> http://www.consumeractiongroup.co.uk/forum/legal-issues/255981-ccj-issued-link-need.html

 

Here (post 212) >>>> http://www.consumeractiongroup.co.uk/forum/legal-issues/259523-mbna-county-court-summons.html

 

Along with the post from cymruambyth you should be able to cobble something together. Just as vague as their POC :).

 

Look at Restons in the Legal Forums. You'll get a good idea of how they work and how others deal with them.

 

M

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ALL unsolicited PMs and E-mails should be posted up - Not all on CAG are who they appear to be

 

 

My views are my own. If in doubt, seek professional advice. If I can help though, I will. CAG helped me!!

 

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Got to agree with M and M, its best to only keep to requests mentioned in their POC, IE, dont give them a heads up, that they SHOULD have submitted a DN.

Coz that is one bullet to hit them with with later.

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Best of luck with this one Manchestman. AS you know I'm a bit further along the trail than you are, but the crappy PoCs are very similar.

 

I interpreted "Post Refri Cr NIL" to be "Post Referral Credits - Nil" - meaning that there haven't been any payments made since it was referred to the solicitors.

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I interpreted "Post Refri Cr NIL" to be "Post Referral Credits - Nil" - meaning that there haven't been any payments made since it was referred to the solicitors.

:) Nice one.

 

M

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ALL unsolicited PMs and E-mails should be posted up - Not all on CAG are who they appear to be

 

 

My views are my own. If in doubt, seek professional advice. If I can help though, I will. CAG helped me!!

 

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As you all know, I got my 31.15, cpr 18 and cpr 15.5 request to Restons last Wednesday, and it was delivered Thursday. I would love to keep it simple & follow pt2537's advice to quickly follow up any CPR non compliance with request for 'unless' order. Unfortunately, Restons 7 days to comply does not expire until Friday, 11th June, but my defence MUST be submitted by Wednesday, 9th. I seem to have got myself in a corner where the only way I see is to plead an embarrassed defence, but this also gives Restons extra time too.

DnC, I read your thread with great interest (no pun intended) and take on board everything you have said, but am hoping that a full defence won't be necessary - I'll explain a little later.

 

if you are not going for a full 'dismiss' the claim then I would suggest that you dispute the contractual interest and the other interest

 

In the absence of a copy of the original agreement you are completley unable to audit their claim for interest

 

Any generic copy of an agreement that is provided and claimed to be the norm still does not enable you to AUDIT these charges and this is something that you have a legal right to be able to do.

 

Mr Duff partially defended an HFC/Restons claim on this basis and won.

 

M&M & Bazaar, dead right! I have spent most of the last three days reading as much as possible and the one constant throughout is how similar (almost identical) most Reston's POCs are! So, having read as many EDs as I can, I have cobbled one below, comments much appreciated please.

 

Try here (post 33) >>>> http://www.consumeractiongroup.co.uk/forum/legal-issues/255981-ccj-issued-link-need.html

 

Here (post 212) >>>> http://www.consumeractiongroup.co.uk/forum/legal-issues/259523-mbna-county-court-summons.html

 

Along with the post from cymruambyth you should be able to cobble something together. Just as vague as their POC :).

 

Look at Restons in the Legal Forums. You'll get a good idea of how they work and how others deal with them.

 

M

 

Notasniceasjoe, thanks for support and for explanation of code

I interpreted "Post Refri Cr NIL" to be "Post Referral Credits - Nil" - meaning that there haven't been any payments made since it was referred to the solicitors.

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I telephoned Restons today to ask if they would agree to my CPR 15.5 extension to submit my defence. The guy told me that I should not worry as when I filed my acknowledgment online I automatically got an extension! How gullible does he think I am? I thanked him for his info and pressed him for the new deadline then. He told me - yes, June 9th, same as before! He can't see any communications from me even though it was signed for. (I'm so glad I have truecall and all calls are digitally recorded.) Oh well, Ed here we come!

 

Why do I think I won't need to defend (after my delaying ED tomorrow)?

 

1/ I believe that just like Dizzydiva2010, and many others at HFC, my DN is flawed? (I'm sure someone will correct me if I am wrong.)

 

a] dated Friday 5th March, Received 5 working days later on Friday 12th March, so I assume it was sent next working day (Mon 8th) by second class mail.

b] Claims that to heal breach I must pay up by Thursday, 25th March but just below states in block capitals: ‘IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN ...’ (by end of Wednesday, 24th March 2010).

The 'BEFORE THE DATE SHOWN' is also underlined. I calculate this is either one or two days short of the prescribed statutory term allowed.

 

Late again, but I have utilised vint1954's letter of Unlawful Rescission and sent my version to HFC today by first class recorded post. (http://www.consumeractiongroup.co.uk/forum/legal-issues/259523-mbna-county-court-summons-2.html#post2916885)

 

 

2/ Again, like many others, in the past I have been sent a totally illegible application form copied from microfiche, with NO terms and conditions, current or otherwise, not even included separately! (March 2007). An accompanying letter gave some brief account info, eg date opened, original credit limit etc.

 

a]Later in March 2007, HFC said 'We cannot provide an improved copy ... due to the time ... since your account was opened. (1999 sic) Legally we are only obliged to retain this information for 6 years.'

 

b] Afterwards, I defaulted HFC. In June 2007 they sent me a letter stating that 'the legal application sent to you on 2 March is: ... a true copy of the fully executed agreement as legally requested under the CCA 1974. ... Contains all legally prescribed terms under the CCA 1974. However, I can confirm that this information is unreadable on the copy provided to you ... I can confirm that we are under no legal obligation to retain an original copy of the agreement for any period of time so it is perfectly acceptable for us to copy or scan the original and then destroy it...' They also sent me terms from Aug 2006 and said the originals would be something like this!

 

3/ I cca'd them again last year and in Sept 2009 received a different set of docs. This time they sent me an empty application form and separate set of terms, only the applic form is nothing like the microfiche one!

 

Here's the killer blow. Just like in 2007, they sent a covering letter attached with account information. This time the 'Original Credit Limit: £2,500.00' BUT in 2007, it stated 'Original Credit Limit: £9,000.00'

 

4/ a]Also, back in 2007 after HFC defaulted, I stopped my Direct debit. At about the same time, my illnesses started and together with other financial institutions, I was harrassed by letter and telephone almost beyond belief despite lots of requests to stop.

I issued a large cheque on the strict condition that it could only be used if they returned all illegal charges and interest added while we were in dispute. They didn't respond and simply cashed the cheque and ignored my many requests for its return.

 

b] The harrassment got worse, my illnesses got worse and even though I wrote to them about it, it made no difference. I got scared and restarted my Direct Debits, but then realised I was right and they were wrong. I wrote to them in extremely clear terms that my authority for them to take direct debits was withdrawn until I was satisfied and they must under no circs take any more direct debits. Guess what? They carried on regardless.

 

c] Of course, stupid me did not cancel with my own bank though and they continued taking for 2+ years - thousands of unauthorised pounds, until last August when I felt strong enough to try and get back on track with it all. I have asked and asked for its return but get no response at all concerning direct debits.

 

Will post up my proposed ED separately and later.

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Proposed Embarrassed Defence: Any thoughts, anyone?

 

1.The particulars of claim are insufficiently particularised and discloses no cause of action. They include unexplained codes and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

2. Further to that above, the defendant is disadvantaged and unable to plead effectively or at all. The defendant is embarrassed

 

Therefore the defendant denies all of the allegations made in this claim and puts the claimant to strict proof.

 

Statement of truth

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I've slightly altered the above and want to get the following holding defence in tonight, before my deadline expires and while Restons still have time left from their CPR request. Is it ok or is it too simple? Thanks for any views at all.

 

1. The particulars of claim (POC) are insufficiently particularised and discloses no cause of action. The POC include unexplained codes and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

2. The defendant has requested from the claimant, but not received any document(s) mentioned in the claimant’s POC and upon which any proposed defence would be based.

 

3. Further to that above, the defendant is disadvantaged and unable to plead effectively or at all. The defendant is embarrassed.

 

4. The defendant is unable to deny or admit any allegation made in this claim and puts the claimant to strict proof.

 

Statement of truth

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Hi manchestman you can pick through what I used awhile ago should it assist you in anyway. Am only on briefly now but hope it helps in someway (posting 35)

http://www.consumeractiongroup.co.uk/forum/legal-issues/218054-mbna-help-needed-discontinued-2.html#post2462965

 

You may get the opportunity to provide an amended defence later on?

 

good luck getting it in MDAW

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Thanks for your support, MDAW. I have just submitted my embarrassed defense online.

 

I kept it simple but did pinch and tweak a bit from yours for a point 5. This is what I added: "The defendant respectfully seeks the permission of the court to submit an amended defense and to counterclaim once the claimant does disclose cause of action, provides particularized POC and provides full disclosure as requested under CPR."

 

All I can do now is wait and see if Restons comply with my request to view the agreement and be provided with a copy!

 

Do they have 7 clear days (inc weekends) or 7 clear working days, from reciept of CPR request in which to comply with it?

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All I can do now is wait and see if Restons comply with my request to view the agreement and be provided with a copy!

 

Do they have 7 clear days (inc weekends) or 7 clear working days, from reciept of CPR request in which to comply with it? It'll be 7 calendar days if that's what you gave them

 

Be prepared for Rectums next move which will quite probably be a letter telling you your case has no merit, inviting you to withdraw your defence, and/or a threat of an application for Summary Judgment. That's just the way they operate!

 

Good luck with your battle!

 

Cheers

Rob

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Glad you sorted your defence, dont think you could have done alot more than you have done already as you seem to be on the ball yourself v much already with your CPR requests. Well done & keep up the fight I'm sure lots of advice on board will also assist you on the way.

The court will now send a copy of your defence to the other side, theres a chance now they may dispute its validity on the grounds there is no statement of truth, and have 28 days to inform the court whether they wish to continue, if they do the court will send an Allocation Questionnaire to both sides to fill in.

 

One thought for now is if you might want to file an Application Notice asking for their claim to be struck out, as they did not provide the docs. If you do, you need to download the form N244 hopefully other caggers might want to offer there thoughts on this for you too?

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Thanks for looking in and your support, Rob. I've already had a taste of how they operate when I telephoned them re my request to extend defense deadline!

 

I've read and am following so many different Rectums threads (I like that name, very appropriate!) that I am quite prepared for their nasty letters/threats.

 

 

MDAW, again, cheers for your input - it really makes a difference even if someone just comes along and only says 'subbing', so thank you for keeping me abreast of procedure. At least hopefully I can be ready to start filling in my AQ and in the meantime download an N244 ready to submit.

 

I'm still not too sure about the exact timing to give, so unless told otherwise will assume it is 7 clear working days in which to comply with CPR requests (which ends at the end of tomorrow). Will telephone Rectums again in the morning so I can't be accused of just sitting back, and in meantime will have another look at pt2537's 'CPR part 18 vs CPR 31.14 Confused? well read here' thread for advice on wording of the strikeout order.

< < < < If I can help I will and if I have helped please tip my scales. :|

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In the meantime, here is my DN.

2vvtkpl.jpg

2e49tax.jpg

Edited by manchestman
to put pics in

< < < < If I can help I will and if I have helped please tip my scales. :|

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... and here is what HFC sent for my 2007 CCA request, scanned at 600dpi because it really is so blurred it is impossible to read

 

1235xu9.jpg

5am003.jpg

Edited by supasnooper
to reduce page width

< < < < If I can help I will and if I have helped please tip my scales. :|

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