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we'll have to agree to disagree. :D

 

IMO getting an Unless you produce the documents (which don't exist) then your claim will be struck out without further Order - would be a good end.

 

At that point they have to either come up with the docs - ask permission to re-plead - or discontinue

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Sounds like a plan then GH.If you can avoid any application for SJ or overcome it I doubt they would proceed to trial.

 

Regards

 

Andy

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Well you need to ask for statements in order to see how they have arrived at the sum they are claiming.

 

As gh has said, they cannot claim s69 interest.

 

Is an overdraft regulated under the CCA1974 ? I am not sure about that.

 

Your defence does appear to be based more on a credit card defence rather than overdraft, but I think gh again has posted some useful information.

 

At the heart of this is.. was the "debt" assigned correctly. If not, then CapQuest dont have the right to bring this to court on their own anyway.

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ODs are covered but there does not need to be a formal signed credit agreement as such - but then if they want to disclose one in their POC then lets see it.

 

The biggest problem as I see it is if they get the chance to re-plead they can sort the NOA out (without the NOA the debt is only temporarily unenforceable) sort the POC out and then I see very little chance in winning other than proving the amount - there I have to bow to Andy knowledge of NastyWest 8-) as I haven't had any dealings with them - other than my curr a/c is with them and they are about the only bank I don't owe money to and aren't chasing me :lol:

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Dropping in as requested gh.

 

This is a dilemma isn't it? Go for directions on the AQ & risk not getting them or go for an app for disclosure of docs you know they can't produce but risk alerting them to the POC & allowing them to file an amended one. Hmm... it's a gamble either way methinks.

 

My inclination would be to hedge my bets i.e. file the AQ with carefully worded directions & then if I didn't get them, file the app.

 

As far as I can see, although the contents of the defence are not 'correct', it does answer the POC (which are also incorrect!) & this is an LIP - how is she supposed to know how to respond to a garbled claim?

 

Can you also clarify the following, avamaria:

 

1. Have you sent a SAR to Nat West enclsoing £10.00 & requesting statements & an 'agreement'? Your final defence will possibly depend on showing that the amount is made up of unfair charges & you need those statements to prove that.

 

2. You said in an earlier post:

when they sent some-one to give me a statutory demand I sent them packing and refused to accept it.

 

Refusal of service is not usually an option with an SD & after it is served, you must respond quickly to it. So who tried to serve it - was it by post, by hand, did someone phone you first before they called?? And how long ago?

The reason I ask is that usually the creditor goes for an SD instead of a CC claim not both.

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Missed the SD part :oops: - yes that is important to get sorted .....

 

Main issue imho with app after AQ is that it will, most likely, be SCT and neither Part 18 nor Part 31 apply to SCT .... what CPR would the app be under??

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Ah, forgotten it was SCT :oops: but CPR18 would apply, wouldn't it gh?

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'fraid not - you have to rely on the DJ thinking the request is proportionate and reasonable.

 

Extent to which other Parts apply

 

27.2

(1)The following Parts of these Rules do not apply to small claims

 

(a)Part 25 (interim remedies) except as it relates to interim injunctions(GL);

(b)Part 31 (disclosure and inspection);

©Part 32 (evidence) except rule 32.1 (power of court to control evidence);

 

(d)Part 33 (miscellaneous rules about evidence);

 

(e)Part 35 (experts and assessors) except rules 35.1 (duty to restrict expert evidence), 35.3 (experts – overriding duty to the court), 35.7 (court’s power to direct that evidence is to be given by single joint expert) and 35.8 (instructions to a single joint expert);

(f)Subject to paragraph (3), Part 18 (further information);

(g)Part 36 (offers to settle); and

 

(h)Part 39 (hearings) except rule 39.2 (general rule – hearing to be in public).

 

(2)The other Parts of these Rules apply to small claims except to the extent that a rule limits such application.

(3)The court of its own initiative may order a party to provide further information if it considers it appropriate to do so.

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Obtaining further information

 

18.1

 

(1) The court may at any time order a party to –

(a) clarify any matter which is in dispute in the proceedings; or

 

(b) give additional information in relation to any such matter,

 

whether or not the matter is contained or referred to in a statement of case.

 

(2) Paragraph (1) is subject to any rule of law to the contrary.

 

(3) Where the court makes an order under paragraph (1), the party against whom it is made must –

(a) file his response; and

 

(b) serve it on the other parties,

 

within the time specified by the court.

 

(Part 22 requires a response to be verified by a statement of truth)

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Apologies for the delay my lap top had a bug!

 

Firstly responding to questions raised on by foolish girl on 8.10.

 

I didnt request the SAR from capquest as I understood that if they were taking me to court they would have to provide me full details of their defence and the detail of what it is that makes this up. Hence the letters I sent requesting the detail. However, capquest have ignored all correspondance other than a letter regarding failure to comply with precourt conduct which they have advised they are contactinbg natwest - but I have receied nothing. I can do a SAR if you think that is the way I should go.

 

On the statuory demand, basically some man in a car waited for me outside my house and tried to give me a letter, which I refused to accept on the basis that I disputed the amount owed, that was in January this year, after which I heard nothing more from capquest until the N1 arrived in the post in July some 7 month later.

 

Secondly and in trying to follow the threads, which is a little confusing, I have downloaded the form and started trying to complete it, are we agreed this is the way forward and I do not return the other form for the 18th, do I just need to get the £40 fee and request for the information into the court ahead of the 18th.

 

Appreciate all your help on this

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I didnt request the SAR from capquest .....

 

I think you will need the info from a SAR to determine what info they have in relation to your OD, also statements to see if any unfair charges have been applied as you may be entitled to claim a refund on those. However, suggest you get the AQ/app out of the way first.

On the statuory demand, basically some man in a car waited for me outside my house and tried to give me a letter, which I refused to accept on the basis that I disputed the amount owed,

 

How did you know he was from NW?

 

Anyway, surprisingly it sounds as though the SD was not served

 

Secondly and in trying to follow the threads, which is a little confusing, I have downloaded the form and started trying to complete it, are we agreed this is the way forward and I do not return the other form for the 18th, do I just need to get the £40 fee and request for the information into the court ahead of the 18th.

 

You need to decide whether to

(a) fill in the AQ asking for directions (& risk not getting them) or

(b) submit the N244 for disclosure of the docs you want & request an extension of time for filing the AQ until the Claimant has provided the docs (in other words, a temporary stay on proceedings)

 

 

Also can you advise me if I return this to Northampon or the locally assigned court??

 

I've not read your thread through AM so which court did you get the claim from? It's at the RH top of the form. If it's Northants, it will be allocated to your local court after the AQs are filed. The N244 is submitted to the court shown on the claim.

When you've decided which way to go, shout if you need help with the forms.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Morning guys

 

Is there any update on this, and do you want to see a copy of the N244?

 

Also there is a section on witness statements, not sure what to put in there

 

Thanks

 

If you are going for the app then you would be asking for an Order pursuant to CPR 31.15 for the claimant to allow you to inspect (or send you copies) of the documents disclosed on their Particulars of claim, namely then list the docs

 

In the Witness Statement you would detail the lack of a 'letter before action' the requests for info already made and the responses to those requests.

You would then go on to say that you have been unable to plead a particularised defence and you are unable to submit

 

Post up what you are going to write then someone will make it sound right :D well better than mine anyway

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Thanks for guidance, I am copying in the response to Qu 3 the order and why. plus response to qu 10.

 

Questions I have on the N244 are:

- do I attach an order?? I have explained this in Qu3 or do I need more detail?

- how do I want the application dealt with, a hearing, without hearing etc?

- details of trial date - well I don't have one??

- what kind of judge?? district??

Qu 3 response:

 

I am requesting an order in pursuant to CPR 31.15 for the claimant to allow me to inspect (or send you copies) of the documents disclosed on their Particulars of claim, these are as follows:

1. a copy of the regulated agreement

2. a copy of the the Terms &Conditions

3. a copy of the termination and/or notice of default

4. copy of the Note Of Assignment

5. a statement of account detailing how the figure claimed has been arrived at.

Without these I a unable to plead a defence to this claim

 

Qu 10 response:

 

I am attaching the documention a responses I have issued to Capquest Investment in my pursuance to resolve this issue and obtain the relevant data, all of which has been issued by recorded delivery. They have deliberately inhibited proceedings in their failure to provide the letter before action and the information requested. Consequently, I cannot plead a particular defence and submit the defence accordingly.

I require the detail outlined in the order to enable the defence to be prepared.

 

I plan to attach all correspondance issued and received.

 

Do I need more detail than this???

 

Also on the AQ form do I attach a copy of this??

 

Thanks

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Looking at the AQ, the questions I have are:

- do I answer yes or no to settling now, given I have no information - as no allows me to say why I cannot settle at the moment

- do I acept mediation? again on the basis I have no information

- will a stay of a month be sufficient, given in 2.5 months they have not provided anything?

 

Pre court action protocols, I have complied with this they have not and I issued a letter to the fact of this to them

 

Do I respond yes to applications - as I plan to procced an order on N244

 

Witnesses - well I suppose that's me?? and experts (definitely not me!)

 

Which track??

 

Trial date! God hope it never gets that far!!!

 

Hopefully you can advise...

 

Thanks

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Comments below AM:

 

Questions I have on the N244

 

I haven't got a copy of an N244 in front of me & HMCS website is down but from memory:

 

In Box 4 write: 'Yes'

In Box 5 write: 'Without a hearing'

Ignore Box 6

In Box 7 write: 'None'

In Box 8 write: 'District Judge'

In Box 9 write: 'Claimant'

In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write your response below

Qu 3 response:

 

I am requesting an order pursuant to CPR 31.15 that the Respondent be ordered to permit the Applicant inspection of or to send true copies of the following documents disclosed on their Particulars of Claim:

1. a copy of the regulated agreement

2. a copy of the the Terms &Conditions

3. a copy of the termination and/or notice of default

4. a copy of the Notice of Assignment

also

5. a statement of account detailing how the figure claimed has been arrived at.

 

Without production of these documents the Claimant is unable to prove their case & the Defendant unable to compile a defence to this claim.

 

The Applicant also seeks an order that the Respondent be ordered to pay the costs of this application to be summarily assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

Qu 10 response:

 

On xxx, xxx & xxx the Applicant sent requests to the Respondent under the Civil Procedure Rules for the information detailed in (3) above. To date that information has not been forthcoming & the Applicant considers that the Respondent is deliberately attempting to frustrate the proceedings as evidenced by their responses attached.

 

Draft Directions are attached

 

---------------------

 

Then on a seperate piece of paper write:

 

xxxx County Court

Claim No: xxxx

 

Capquest v AveMaria

 

Draft Directions

1. Within 7 days of this order, the Claimant is ordered to provide copies of, or permit inspection by the Defendant of, the following documents that pertain to the account that is the subject of this claim:

(a) the regulated agreement

(b) the the Terms &Conditions

© the Notice of Termination

(d) the Default Notice

(e) the Notice of Assignment

(f) a statement of account detailing how the figure claimed has been arrived at

2. The Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

Also on the AQ form do I attach a copy of this?? No, see below

 

 

Again I'm doing this from memory so will need checking when I have an N149 in front of me.

 

Looking at the AQ, the questions I have are:

- do I answer yes or no to settling now, given I have no information - as no allows me to say why I cannot settle at the moment

 

No, application for disclosure under CPR31.15 made

 

- do I acept mediation? again on the basis I have no information No

 

- will a stay of a month be sufficient, given in 2.5 months they have not provided anything? No stay

 

Pre court action protocols, I have complied with this they have not and I issued a letter to the fact of this to them

 

tick no in the box & write "please see attached section C"

then attach:

 

Section C

This case is not covered by any approved protocol, I have tried to act reasonably in exchanging information/documents relevant to the claim, however the claimant has been unco-operative.

On the xxxx & xxx I wrote to the claimant requesting information pursuant to the CPR Part 31.14, in order that I could investigate their Particulars of Claim, and file a suitable defence. Copies are attached to this form.

The claimant's lack of response to these requests is the subject of an application made to the court on xxx

Do I respond yes to applications - as I plan to procced an order on N244 - Yes

 

Witnesses - well I suppose that's me?? and experts (definitely not me!) - Just you

 

Which track?? under £5000, small claims

 

Trial date! God hope it never gets that far!!! Time - 2 hours, state any dates you cannot attend eg. hols, business committments etc.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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To all who have helped. thankyou so very much.

 

I have sent the application order and allocation questionairre today - recorded delivery of cousr and with cheque.

 

Lets see what they come up with now!!!!!!!

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Its the waiting that is the hardest :)

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Well here is a strange one. HL solicitors sent me a copy of their allocation questionaire, where in their witness part, they name an individual who is going to evidence the terms of the `credit agreement'!. Capquest have already sain there is not one as it is not required for an overdraft etc etc.

 

I am intrigued and confused. Lets see what the demand reveals

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Is that normal????

 

Yes, you will be told in due course if the app or the DDs have been granted & what the claimant has to supply & by what date. If an order is given & they don't comply by the set date, you may have grounds for a Strike Out app.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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  • 3 weeks later...

Hi Guys

 

I have heard nothing from the courts, however, have received a statement of sorts from hl solicitors which shows the balance of which £3.5k is charges, interest, fees you name it, no notice of assignments and no credit agreement. I reckon that at best I would owe £1k. HL solicitors have asked me to contact a named person to try and agree settlement.

 

What do I do??

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Contact said person and try to reach an agreement on the balance (true balance ie less unfair charges and interest). Payment plan on 1K.

 

Regards

 

Andy

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