help with capquest

[gh2008]

Could you post up (or post links to)

 

The Particulars of Claim (on the N1 form)

Any S77-79 requests that have been made date of request & response

Any CPR requests that have been made

Your defence

 

N149 or N150? & when has it got to be in by?

[gh2008]

S.77-79 request is a statutory request for a true copy of the executed credit agreement & docs referred to in it & 'state of the account' - it costs £1 and if they do not comply they cannot enforce the agreement (i.e. obtain a judgement against you)

 

If you have not done one, it is not too late. Get one off to Capquest (if they are the claimant on the N1 form) ASAP

 

Try using 'PhotoBucket' to host the photos/scan - remember to remove your personal details from the forms/letters etc.

 

The more info we have the better we can advise.

 

DO NOT submit your AQ (N149) without advice as this is a crucial point in the proceedings.

[gh2008]

Unfortunately that CPR request would be deemed 'out of proportion to the matter' imho

 

anyway, didn't realise this is an overdraft. Not too hot myself on overdrafts although AFAIK they do still need an agreement as they are regulated by the CCA. The agreement would be for teh actual bank account rather than for the credit per se. That agreement should lay out the terms that any overdraft would be granted on.

 

Basically they need to show that under the T&Cs you agreed that the OD is, in fact, repayable upon demand or however else they say they are demanding repayment. They need to show that the OD was not a 'never ending arrangement'

 

What is your defence to this claim? Is it just 'haven't got enough info? or something else?

 

jmho

[gh2008]

That defence is more to do with a credit card than an overdraft .....

 

AFAIK no credit agreement or default notice etc are needed for an OD

 

I expect it was issued via Northampton Bulk Centre, in which case no copy of any documents are required either.

 

Let me have a think about the best way forward. It *may* be making an application to the Court for disclosure of the account agreement together with proof of the amount claimed and the NOA and proof of service. They are the docs required for them to prove their case (other than the proof of service of the NOA which would be disregarded)

 

I'll have a think and do some more research into ODs

Edited October 7, 2010 by gh2008

[gh2008]

How much is the claim for? more or less than £5k?

 

Can I just say one thing. When you send a letter, please make sure you understand what you are writing and why. In your CPR request you are asking for info about a loan??? whereas this is actually an OD ...

 

Just copying and pasting doesn't work ......

 

I do think you need to try and stall the process and sort out your corner.

 

Basically you need

1. a copy of the regulated agreement

2. a copy of the the T&Cs

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

4. copy of the NOA

 

all disclosed in their POC, together with

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

 

Once you have all that you can sort out a defence

 

-----

 

I presume you actual defence to the claim will centre around

1. whether the agreement with NatWest actually required the OD to be repayable on demand - or, for that matter, if not then how, if at all, was the OD repayable.

 

2. If there are any other unrecoverable charges included in the amount claimed

 

3. S.69 interest is not allowed on a claim under which contractual interest applies

 

-------

 

So, the options are to ask for Special Directions on the N149 and *hope* the DJ agrees

OR make an application to Court which they will *have* to take notice of.

 

I prefer the latter, but it will cost you £40 unless you are exempt from fees (check EX160)

[gh2008]

If you make an app, you won't need to send in the N149 as the process will effectively stop.

 

I have asked foollishgirl to just check my thoughts for anything glaringly wrong - wait for her comments before going ahead.

 

You can download the N244 form and start looking at how to fill it in.

 

I will Draft up an Order for you

[gh2008]

Just shows how much Cappers know, since when did a current account become an agreement:!: hence Nasty got shut to them to instigate litigation.

Regards

Andy

 

.

 

 

I've just pm'd fg about that - teh fact that they have disclosed a regulated agreement then I think the Court will have no problems ordering a copy

 

can't wait to see what they come up with .......

 

my draft Order will certainly be an unless order as it should be having already disclosed the document ....

[gh2008]

HI Andy

 

My main thought is to try and stop the process before AQ and the claimant asks for the defence to be struck out ..

 

Then, reading the POC I realised that it may be an arsenal able to be turned around and used in the OP's favour.

 

Hence an app for an 'Unless Order' something along the lines of a Part 31.14 order for copies of teh disclosed docs with a Part 18 bit tagged on to prove the amount claimed

 

with a Defendant do file and serve a fully particularised defence in repose to those documents

 

Just checking I wasn't barking up the wrong tree - not done an OD claim before ..... but then if they are disclosing a regulated agreement and Default Notice, then let's see them

 

cheers - gh

[gh2008]

My reservation with that is that the DJ could ignore the Special Directions request and allow it to go to trial with the existing POC & Defence.

 

Part 31.14 request would then be excluded as they do not apply to SCT nor do the strict rules of disclosure - it *could* be heard purely on what has been submitted.

 

If I was the claimant I would certainly be filling in my AQ asking for the defence to be struck out as it clearly is largely irrelevant and merely prolonging matters (not saying it is - but that is what I would write as a claimant)

 

As the OP has denied very little other than a NOA (easily rectified with a WS) and the amount - which again unfortunately can just be justified with a WS in SCT

 

At the moment it is 'trackless' and assumed to be multi-track where all the rules apply - I think I would make use of them ...

 

jmho

 

Oh, not advocating a SO app - just an app to order disclosure of the docs in the POC

[gh2008]

we'll have to agree to disagree.

 

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

[gh2008]

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

[gh2008]

Missed the SD part - 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??

[gh2008]

'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.

[gh2008]

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 well better than mine anyway