Court Tomorrow _ Help Please!

[Mission24]

Hi Guys.. Well BOS have sent me some information but not the information, as requested. They have also changed solicitors and transfered to my local court.

I have received a copy of the signed credit card application, as well as a copy of their general terms&conditions and a set of statements dated from 2001.

I also received an Allocation Questionaire... now how do I move forward now that they have not complied? Can I write to have it struck out or is it too soon for that? Please let me know if you need any further info!! Thank you

[Mission24]

Hi,

 

I am due in court tomorrow for my hearing of the application I made for judgement to be set aside (as it was made in my absence) and really need some help on clarifying legally what my reasoning is!

The case relates to a credit card agreement I have been taken to court by RBS (a Halifax credit card) they continually failed to adher to requests I made and I then sent a Draft Order for Directions which the court then issued, however they did not respond byt he date given and I wrongly assumed the hearig would not go ahead and I then wrote to the court to consider dismissing the case;

 

XXXXXam the Defendant in this action and make the following statement as my Defence to the claim made by the Bank of Scotland Plc;

 

1) The claim as pleaded does not contain sufficient particulars to permit me to file a properly particularise and pleaded defence. As you are aware, I respectfully proposed a Draft Order for Directions which the Court then issued - the Claimant has proceeded to default in complying with the directions given in the case and no documents supporting the claim in the particulars have been offered – I have listed these below;

· Copies of the Credit Agreement (and not the application) and any documents referred to within it which complies with the Consumer Credit Act 1974 and all subsequent regulations, which the Claimant seeks to rely on in court.

· Default notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

· Document contract or deed of assignment

· Notice of assignment with proof of service of the same compliant with s196 of the Law of Property Act 1925

· Copies of any statement or other document relied upon.

 

 

2) I also made a request for disclosure previous to this (CPR 18 and 31.14 posted Royal Mail Special Delivery), pursuant to Part 31 of the Civil Procedure Rules, to the Claimant, to allow me to properly respond to the claim and the Claimant also failed to fulfil the Part 31 request.

 

3) It is Not admitted that I signed any agreement with the claimant. If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

4) It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

 

5) I have no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

 

 

6) Further and in the alternative it is not admitted that the sum claimed is lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how it is asserted that the sum claimed is contractually owing.

7) Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimedIn view of the above, it is denied that I am indebted to the Claimant as alleged or at all.

I believe that the facts stated in this defence are true and would like to request that the case be struck out, as per the Order; the Claimant has not complied with the Directions given

 

I would be grateful if you could advise of exactly what the judge will want to know tomorrow - I was told it would be held in his chamber and that it would take less than 20mins which has eased my nerves slightly but as you can imagine I am keen to know exactly what I am saying before continuing to defend myself... any assistance would be greatly appreciated!!

[Mission24]

Sorry.. neglected to ask what documents, if any, I should be taking along with me?

[Mission24]

Well I am due in court tomorrow for my hearing of the application I made for judgement to be set aside (as it was made in my absence) and I really need some help on clarifying legally what my reasoning is and what documentation I should be taking with me.

They continually failed to adher to requests I made and I then sent a Draft Order for Directions which the court then issued, however they did not respond byt he date given and I wrongly assumed the hearig would not go ahead and I then wrote to the court to consider dismissing the case;

 

XXXXXam the Defendant in this action and make the following statement as my Defence to the claim made by the Bank of Scotland Plc;

 

1) The claim as pleaded does not contain sufficient particulars to permit me to file a properly particularise and pleaded defence. As you are aware, I respectfully proposed a Draft Order for Directions which the Court then issued - the Claimant has proceeded to default in complying with the directions given in the case and no documents supporting the claim in the particulars have been offered – I have listed these below;

· Copies of the Credit Agreement (and not the application) and any documents referred to within it which complies with the Consumer Credit Act 1974 and all subsequent regulations, which the Claimant seeks to rely on in court.

· Default notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

· Document contract or deed of assignment

· Notice of assignment with proof of service of the same compliant with s196 of the Law of Property Act 1925

· Copies of any statement or other document relied upon.

 

 

2) I also made a request for disclosure previous to this (CPR 18 and 31.14 posted Royal Mail Special Delivery), pursuant to Part 31 of the Civil Procedure Rules, to the Claimant, to allow me to properly respond to the claim and the Claimant also failed to fulfil the Part 31 request.

 

3) It is Not admitted that I signed any agreement with the claimant. If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

4) It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

 

5) I have no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

 

 

 

6) Further and in the alternative it is not admitted that the sum claimed is lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how it is asserted that the sum claimed is contractually owing.

7) Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimedIn view of the above, it is denied that I am indebted to the Claimant as alleged or at all.

 

I believe that the facts stated in this defence are true and would like to request that the case be struck out, as per the Order; the Claimant has not complied with the Directions given

 

I would be grateful if you could advise of exactly what the judge will want to know tomorrow - I was told it would be held in his chamber and that it would take less than 20mins which has eased my nerves slightly but as you can imagine I am keen to know exactly what I am saying before continuing to defend myself... any assistance would be greatly appreciated!!

[unclebulgaria67]

If HBOS have not supplied the documents in line with CPR requests, then as claimants they would have a lot of explaining to do. Therefore I would think most of the time would be taken up by the judge asking the claimants why they had not complied with these reasonable requests for information.

 

If this is the case, I think you would just be asked to confirm details of the requests made and confirmation that HBOS failed to provide the documents requested.

 

It would be wrong of any other discussion to take place and if this were to be the case (unlikely), you would enter an embarased defence that without sight of the documents and the ability to take advice, you are not in a position to be able to comment on any claims being made.

[wycombe]

I suggest you try and get a site members opinion as you are so close to your day in court so to speak. Click on the little red triangle that says 'report post' when you hover the cursor over it (bottom left of post)- then hopefully - you will get the advice you are seeling from someone who is more knowledgeable than myself.

 

UB's post beat me to it!!

 

Good luck for tomorrow.

Edited July 8, 2010 by wycombe
added info

[Mission24]

Thanks guys I shall report my post now!

 

I should clarify - They managed to scrape some documents through a couple of weeks before the trial (mostly statements and an application form copy etc) but again not ahering to the requests. They've proceeded to submit a notice of change of solicitor from SCM to collections and recoveries (7th June) and wrote to me to say they have received judgement etc, so I'm unsure whether they will turn up tomorrow!

[postggj]

When In Court , Just Tell The Judge They Have Not Fully Complied With Your Cpr Request And Ask For An Unless Order Or Consider Striking Out The Claim For Non Compliance

[MARTIN3030]

So what happened between 8th February until now ?

[MARTIN3030]

2 threads merged.

[Mission24]

Sorry about that Martin.. thank you for merging!

 

Thanks for all the advice guys - just so you know between February and now I have submitted my allocation questionaire, draft order for directions (granted) and I also submitted an embarrassed defence and asked that it be struck out - that was my last communication with the court hence I was under the wrong assumption that the hearing would not go ahead!

[MARTIN3030]

Ok clearer now.

What was the draft order you submitted -and did it apply to both parties ?

[Mission24]

Yes it was to both parties - please find below;

DRAFT ORDER FOR DIRECTIONS:

Between

Bank of Scotland Plc - Claimant

and

XXX- Defendant

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

* Copies of the Credit Agreement (and not Application) and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations which the claimant seeks to rely upon.

* Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended

* Document contract or deed of assignment

* Notice of assignment with proof of service of the same compliant with s196 of the Law of Property Act 1925.

* Copies of any statement or other document relied upon

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

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

* An amended defence sufficiently particularised in response to the documents supplied by the claimant.

If the Defendant fails to comply with this order the Defence will be struck out without further order.

[postggj]

As Stated

 

Inform The Judge Of There Non Compliance And Request An Unless Order Or Strike Out

[Mission24]

thanks postggj

[MARTIN3030]

Yes looks good for you then.