1st Credit & LCS Battle - court papers received - help

[BRIGADIER2JCS]

Hi Newman, recons are a fact of life now, 1st Crud

seem to encourage OC's to produce them especially

if someone is fighting back.

If they consider the requests without

merit why are they so reluctant to comply

if it will not harm THEIR CASE,.....????

[newman]

Thats a really good question actually. I assume that they hope that if they are evasive for long enough then this will mean that the LIP runs out of time.

 

I have now managed to scan their letter along with a few comments of my own but I think the text in my previous post should be good enough as its exactly the same thing.

 

OK so as far as I see it I have a few choices now and its a question of which is the best one to take as I now only have 15 days to enter a defence.

 

1) respond to their letter addressing some of the points they have got wrong and also asking them not 1st credit for a response - play them at their own game. - not sure if this is necessary apart from self satisfaction and requesting again that they comply with CPR 31:14

2) apply to the court on a N244 for full disclosure as well as making a formal complaint if that is possible

3) do as Brig suggested and make a formal complaint to their own internal compliance dept

4) All of the above

5) Another route?

What is the best one for me to take me wonders?

THEIR ORIGINAL LETTER

110803 lcs reply to my letter 29-07-1.pdf

[BRIGADIER2JCS]

Hi, agin, My view is all of them, the formal complaints

to Compliance Managers has earned me significant,

''gestures of goodwill '' in the shape of lovely cheques:madgrin:

[newman]

Cheers Brig

 

Do you have any copies of the letters you have sent that I could have a look at. I am happy to give you my email address - I will PM this to you if you are willing to let me have some of your copies or just post them in this thread with personals taken out of course.

[BRIGADIER2JCS]

I would be happy to but the documents are third parties

property as I act as litigation friend on court hearings

and mediations, but if you need to get some help I will

happily draft some thing up for you.

[newman]

Hi Brig

 

I understand - I would really value your help in this one as I think they are going to be a difficult bunch to deal with. I will PM you my details.

 

thanks very much again.

[Undercover-Elsa]

Hi Newman,

Not got much time to ponder on all this at the moment, but in brief my gut reaction is ignore that letter for the moment and go straight for the N244, but with a cautionary note to make it as succinct as possible, concentrating only on the most valid points ie the agreement, DN and Assignment.

This is what I was afraid of with making too many demands and overcomplicating the CPR letters.

[newman]

Hi Newman,

Not got much time to ponder on all this at the moment, but in brief my gut reaction is ignore that letter for the moment and go straight for the N244, but with a cautionary note to make it as succinct as possible, concentrating only on the most valid points ie the agreement, DN and Assignment.

This is what I was afraid of with making too many demands and overcomplicating the CPR letters.

 

Hi Elsa - Thanks very much.

I do take your point about making too many demands and overcomplicating the CPR letters, however, having now read this through half a dozen times today it is clear that even if I had sent a very simple CPR 31:14 they would still have responded that none of it has any merit. They have used that phrase 7 times on all points and they have been very pedantic in informing me that it wasnt their client that answered the CPR 18 but them and so if you notice they have doen everything they can to not actually answer Q 1, 1A & 2 with a yes or no answer.

 

I am very tempted to write to them and put them on the spot by asking them specifiaclly if they can just answer yes or no to questions 1, 1A & 2 as well as sending off the N244.

 

To keep the N244 succinct - thats a challenge and a half but I will have a go - we almost had it done before in post # 252 0n page 13 and I have stored that as a separate doc so it shouldnt take too long to amend it. I will definately make a complaint that they seem to be abusing CPR procedure in the way they are responding to my correspondence.

 

As a matter of interest do you know what the general view is from the judges of any company that deals with the CPR requests in the way LCS has done? I only ask because it seems that some Co's are walking all over LIP's by utilising the services of very experienced lawyers who can run rings round any LIP? I have no idea how experienced Mr RD Marr, Principal Solicitor of the legal division of 1st Credit, is but he seems ery good at totally avoiding questions.

[Undercover-Elsa]

Hi Newman,

Totally depends on the judge, and how banker friendly they are I would think.

 

OK here's my take on that letter. Some of it you may not like but it's my honest opinion, in an attempt to help.

 

Dear Sir

1st credit (Finance) Ltd. v Sxxxxxx

We write further to the above and to your 29 July 2011 letter received on 01 August - This was faxed to them on the 29th so they had a copy of it then not the 1st Aug -

2011.

We reply as follows:-

1. you are wrong that our client replied to your part 18 request - we replied on 19July2011; Pedantic or what?

2. you are again wrong in your suggestion that your request has been delayed by the claim form particularisation. Indeed such a suggestion is rejected since it clearly lacks any merit;

3. the claim is particularised and it is not vague. Please state whether you deny entering into an agreement with Citifinancial Europe plc;Under no circumstances answer this.

4. would you please explain why you sent a second part 18 request when we replied on 19 July 2011. We invite you to cease corresponding with our client and instead to correspond with ourselves I havent been writing to their client - I have only written to them since they had the case passed to them so I have no idea what they mean by this statement. In the light of this the purported waste of time is rejected. Ignore

We take the view that you are simply wasting your own time by writing to our client when you know we are instructed and are corresponding with you; again no idea what they mean by this statement as I have clearly addressed all of my letters to LCS - are they getting confused as they are really only part of 1st Credit Ignore

5. your second paragraph is rejected since it is clearly disingenuous and lacks any merit. The purported time limit is rejected. Would you please send the purported second part 18 request to us; This was sent to them received on the 27-07-11 at 08:20hrs and signed for by a P Bloomfield - are they totally stupid or what?? - I have alll the proof of deliveries and the signatures for the letters they received

6. we refer to your third paragraph, first sentence and again the reference our client is wrong and rejected. We have responded to the part 18 request and we reiterate its contents. We have read the remainder of your paragraph and these are matters for you; They still havent actually answered yes or no to my first two questions - are they avoiding answering these questions because they dont have the documentation I wonder.

For the benefit of anyone trying to follow this, it refers to the part 18 questions:

1. Do you have a true copy of the original, signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened?

1A. Was the agreement in written form and if so was this a regulated agreement under the Credit Consumer Act 1974.

2. Do you have true copies of any default notice or enforcement notice that you or the original creditor sent me and do you have copies of any proof of postage?

AND THEIR EARLIER RESPONSE:

1. You have been provided with the agreement upon which we intend to rely. (a recon) You acknowledged receiving it in your letter dated March 2010. Obviously don't have a signed original then.

2. You were advised that you were sent a default notice in May 2007. Not good enough, they must supply proof.

　

7. we refer to your fourth paragraph and take the view you are wrong, but again this is a matter for you. We refer to Carey v HSBC plc 2010 and paragraph 119; Advice needed here guys

Carey 119:

The only other possible question is whether the terms and conditions set out at pages 198- 201 were in fact those applicable at the time of the executed agreement and contained or referred to therein. The pleaded claim is that the agreement was made in the early 1990s whereas the creditor says 1999 and the terms and conditions appear to derive from 1998. The appropriate course here is to allow that purely factual issue to go forward if the debtor wishes it. In any particular case there may arise a factual dispute of this kind which may need to be resolved. The important point, however, is that a copy provided under s78 is not to be regarded as non-compliant simply because it is reconstituted or is derived from a source of information other than that which appears on the original executed agreement itself. The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance with s78.

NOTE: this refers to compliance with section 78 CCA requests, NOT to enforcement by the courts following default!

Check out the following thread on defending against recons: http://www.consumeractiongroup.co.uk/forum/showthread.php?314597-Challenging-Reconstituted-Agreements...

　

　

8. we further take the view that you are able to file and serve a defence in the absence of a default notice; I do have a very extensive defence prepared that I obtained from another thread which was all to do with a dodgy defence notice being issued. Interesting that they have changed from categorically claiming that a DN was sent out to now stating I can submit a defence in the absence of a DN. They cannot enforce without a DN.

9. we refer to your sixth paragraph and and also to your 12 July 2011 letter. The 12 July 2011 letter and its entire contents are rejected since it is without any merit in either fact or law. In order to assist you there is no agreement and consequently there are no fees either agreed or otherwise that are or maybe payable. Thus the purported fee schedule is rejected.

This refers to this in the 31.14:

In my letters dated 27-06-2011 & 05-07-2011, I offered your client a conditional agreement and I categorically stated that I would be very happy to settle any financial obligation I might lawfully owe as soon as I received the documentation requested, which has removed any controversy and means that you no longer have any ultimate recourse to a court of law in this matter, because there is no controversy upon which it could adjudicate. As stated previously you do of course always have the option of dragging these conditions into a court of law only to be told that they are, indeed, perfectly lawful. That is, of course, always your prerogative should you decide to waste your time.

As your client has chosen to disregard my letters we are now in a lawfully binding tacit agreement and should you decide to pursue this matter further I will have no hesitation in enforcing the terms detailed in my notice dated 12-07-2011.

If you wish to pursue the matter then that is a matter for you but in a case 4 months ago based on similar erroneous and disingenuous matters, the claimant lost and was ordered by the court to pay costs in excess of

£10,000.00. Please do confirm whether you still wish to pursue your 12 July 2011 letter; Dont worry about this point. Agreed. Let it go.

10. it follows that your sixth paragraph is rejected, it is meritless; Agreed. Albeit rather rude.

11. your seventh paragraph is rejected and we repeat the contents of number 9 above. We repeat there was not and is not any agreement and thus your threat is rejected as meaningless and meritless; Agreed. (Sorry Newman!)

12. we refer to page 2 of your letter, the agreement has previously been sent you and we repeat number 1 of our 19 July 2011 letter. Thank you for confirming receipt of the agreements in 2010 in paragraph 3 of your 29 July 2011 letter;

Tosh. Anyone has the right to request a copy of their agreement under s77-79 any time they wish, providing one month has elapsed since a prior request. The fact that they have sent them in the past does not relieve them of their CPR duties, in addition I understand they sent 2 varying (and inaccurate?) copies and have not even specified upon which of these they will rely.

13. we refer to number 12, above, regarding the terms and conditions; Tosh

14. we refer to number 8, above, regarding the default notice; Tosh

15. we further take the view that you are able to file and serve a defence in the absence of a termination notice; ignore

16. notice of assignment was sent on 11 June 2007 as acknowledged by you in your letter to Citifinancial dated 18 June 2007. If you acknowledged receipt no mileage in this providing it was accurate.

17. your number 5 is rejected as irrelevant and meaningless. We refer to the claim form;

This refers to No.5 in 31.14: 5. Verification of your claim against me (a sworn affidavit or a hand signed invoice in accordance Bills of Exchange

Act (1882) ); Shouldn't have been included.

　

18. would you please explain number 6; Refering to:

6. A Copy of a lawful contract signed by both parties and therefore binding both parties. This has me confused too.

19. the statement of account was included in a letter to you dated 21 April 2010.

20. your ninth to thirteenth paragraphs, inclusive merit no reply; So they are refusing to respond? Those paras are just the standard small print of the 31.14 request. They don't require a response.

　

　

21. we refer to your fourteenth paragraph and the last paragraph of our 19 July 2011 letter, thus your defence is to be filed by 18 August 2011. If you fail to file your defence by 18 August 2011 we will apply for judgment and if unpaid then we will enforce the judgment; Arrogant whatsits. Yes, I agree with you Newman.

22. we refer to your fifteenth, sixteenth and seventeenth paragraphs and in the light of the above none merit a reply. Again refusing to respond to the CPR31:14. Reiterating that they won't give further time extension too.

[Undercover-Elsa]

I would get started on that N244, Newman, then post it up.

[newman]

[Hi Elsa - what a star you are - I am so humbled at the time you have taken to respond to this. Believe it or not I was up till 3am this morning writing a response to them as I was so mad at their attituide. You may advise me not to send it but I will post it up anyway and see what you think.

 

I have answered in the body of your comments as I can now do thi sin mulit colour but I will use This lovely colour for my commetns

 

Ah well that hasnt worked - I wanted to comment in the text you had inserted - I dont know how to do that mmmmmm

[babybear39]

Ok...

 

The legislation you can rely on is the UCPD 2005/29/EC which was implimented in to UK legislation via the CPUTR 26th May 2008.

 

Short sweet letter to the sols. asking if they know which bits they and thier client have breached

 

Complain to the SRA regarding the sols. re: non comp. with CPR.

 

Good luck and best wishes,

 

BB

[newman]

Hi Baby Bear - thanks for that but can you please decipher the UCPD bit and the CPUTR - would also welcome comments on my letter when its up.

 

Cheers

 

Ok...

 

The legislation you can rely on is the UCPD 2005/29/EC which was implimented in to UK legislation via the CPUTR 26th May 2008.

 

Short sweet letter to the sols. asking if they know which bits they and thier client have breached

 

Complain to the SRA regarding the sols. re: non comp. with CPR.

 

 

Good luck and best wishes,

 

BB

[babybear39]

Hi Baby Bear - thanks for that but can you please decipher the UCPD bit and the CPUTR - would also welcome comments on my letter when its up.

 

Cheers

 

UCPD is the Unfair Commercial Practices Directive which was passed in the EU in 2005. CPUTR is the Consumer Protection from Unfair Trading Regulations which was implimented in to UK LAW on the 26th May 2008.

[newman]

AS I cant seem to answer in the bodyu of the text I have just listed the numbered points - No 16 Re the assignment is prob the main one I need to work on right now as well as all the other stuff

 

3) - totally agreed - no intention of answering this

4) OK I will ignore this but I will leave my comments in my letter and see what you think - I will take them out if you feel they are unneccessary

6) 1&2 dealt with in my letter.

7) Not sure whether to include anything about this in my letter. Also TVM for the link to the thread. Very interesting.

8) dealt with in my letter

9, 10, 11) I agree with you too

12 - 15) agreed

16) - not sure if it was accurate. What I do know is that the date of the assignment was the 11-06-2007 but they actually sold the account to 1st Credit on the 31-05-2007(its in post# 163) and this is the date that the default was entered against my credit file by 1st Credit!! Also the DN came on copied paper not an original coloured letterhead

Copy of post #163 for easiness

I have just checked the last credit report I had which shows that my account was in fact defaulted on the 31-05-07 and I wasnt informed by Citi that they had assigned my account to 1st crud until 11/06/07. I was never informed by Citi or 1st Credit that a default was going to be registered on my account. - I am wondering if I can use this in any defence I put together

 

1ST CREDIT LIMITED Unsecured loan

Default £6,727

Name: MR xxxxxxxxx xxxxxxxx

Address: xxxxxxxxxxxxxxxxxxxxxxxxx x

Date of birth: xx/xx/xx

Company name: 1ST CREDIT LIMITED

Account type: Unsecured loan (personal loans etc)

Default Balance: £6,727

Current Balance: £6,727

Defaulted On: 31/05/2007

File Updated for the Period to: 23/12/2007

17) OK

18) - full details of why a contract is important can be found on the get out of debt free forum - its fairly complex and detailed so its best to have a look there.

 

Hi Newman,

Totally depends on the judge, and how banker friendly they are I would think.

 

OK here's my take on that letter. Some of it you may not like but it's my honest opinion, in an attempt to help.

[newman]

UCPD is the Unfair Commercial Practices Directive which was passed in the EU in 2005. CPUTR is the Consumer Protection from Unfair Trading Regulations which was implimented in to UK LAW on the 26th May 2008.

 

Thanks very much Babybear - any thoughts on a suitably worded letter?? - Or perhaps it can be slipped into my letter I have prepared.

 

Ok I will post that one now and take comments/advice etc.

[newman]

##UPDATE##

 

Ok here is a response I prepared last night - till 3am this morning so it may be a bit wordy but feel free to slash it - chop it change it etc etc. I did think of giving them notice that I am going to make a request on N244 but took it out. Let them answer this and then by the time they have done that the N244 will be in action and a bar on judgement will be in place until a jiudge has looked at it.

 

 

LCS Solicitors, The Omnibus Building, Lesbourne Road, Reigate, Surrey, RH2 7JP

 

03 August 2011

 

Dear Sir,

 

Re: (1st Credit ) v (Wxxxxx : Sxxxx) Case No/LCS REF: xxxxxxx/xxxxxxx/xx

 

I write further to your letter 02 August 2011 received 03-08-2011. Please note that in writing this letter, I am only addressing those points where you have made mistakes or where I require specific answers to questions which have so far been ignored or are unanswered. Any other questions you have asked may be answered at a future point.

 

Please note I do not require you to deal with each paragraph in this letter, I only require answers to the specific questions I have asked. I would request that you refrain from either ignoring my questions altogether or providing evasive answers.

 

You have incorrectly stated that you received my CPR 31:14 request dated 29 July 2011 on 01 August 2011, however, you actually received my letter at 11:33 hours on the 29-07-2011 by fax, which I then sent the same day by recorded delivery, which was signed for by YASS at 08:02:00 GMT on 30-07-2011, not on the 01-08-2011 as you have incorrectly stated in your first sentence. A copy of the proof of delivery is attached with this letter.

 

In my fax I requested confirmation of receipt of my letter, which was ignored.

 

1) You state that your firm responded to my CPR18 request on the 19 July 2011, however in that letter you stated “in paragraph 3 that “Rather than take the procedural point, we will respond to the questions raised and use your numbering to respond”. I would also remind you that in your letter dated 19 July 2011 you stated “We will comply with the rules as to disclosure during this matter”;

 

By refusing to adhere to CPR procedure and refusing to acknowledge which documentation you have in your possession with which you intend to rely on in court and my subsequent requests to be provided with copies of any and all documentation you seek to rely on in court, you have clearly not complied with CPR rules in relation to both my CPR 18 requests dated 04-07-2011 & 21-07-2011 and my CPR 31:14 request dated 29-07-2011. You have even stated numerous times that my specific points relating to the CPR31:14 request, merit no reply whatsoever, which is a clear breach of the CPR.

 

4) A second CPR 18 request was sent to you because I had apparently incorrectly addressed my first CPR18 request dated 04-07-2011 to 1st Credit and as was very clearly explained in my 2nd CPR 18 request dated 21-07-2011, I required specific answers to all of the questions in my 1st CPR 18 request so that I had sufficient time to prepare an adequate defence, however these questions still remain unanswered.

 

A copy of my 1st CPR 18 request dated 04-07-2011 was attached to my 2nd CPR 18 request dated 21-07-2011 which was faxed to you on Thursday 21-07-2011 and was received at your company at 13:50 hrs. The same letter was then sent by recorded delivery the same day which was received and signed for at your office by P Bloomfield at 08:20:00 hrs on the 25-07-2011.

[

NB: I now require specific answers from you to all of the points asked in 1, 1A and 2 as detailed in in my CPR 18 request dated 04-07-2011. Please note these questions only require yes or no as answers ./B]

 

1. Do you have a true copy of the original, signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened?

1A. Was the agreement in written form and if so was this a regulated agreement under the Credit Consumer Act 1974.

 

2. Do you have true copies of any default notice or enforcement notice that you, your client, or the original creditor sent me and do you have copies of any proof of postage?

 

In your second sentence of point 4), you have requested that I cease corresponding with your client, however, as you are aware, my correspondence dated 21-07-2011 & 29-07-2011 have been written directly to LCS and I have not corresponded in any way with 1st Credit. I did specifically confirm in my letter dated 21-07-2011 that I would address all future correspondence to LCS.

 

Your last sentence of this point is completely incorrect because you are well aware that I have not been corresponding with 1st Credit since I was informed verbally by Mr Chris Ridd of J&P Solicitors on Monday 18-07-2011 that you were dealing with the matter. Therefore, your view that I am “simply wasting my own time by writing to our client when you know we are instructed and are corresponding with you” is totally incorrect and lacks any merit and as such is rejected and I stand by my original comments pertaining to your time wasting tactics.

 

5) You have requested that I send the second Part 18 request to you, however, I am unclear as to why you have asked me to do this as you are already in receipt of this as detailed in point 4) above. As you are already in possession of this 2nd formal CPR 18 request, I see no reason whatsoever to have to send this to you again, which is wasting even more time and preventing me from being able to prepare an adequate defence, however, as a matter of courtesy; I have attached it again along with the proof of delivery signature and the letter of the 04-07-2011. I am not sure about this underlined bit - should I just refuse to send them what they already clearly have

 

I trust it will not be necessary to waste any more of my time requesting documentation which is already in your possession.

 

6) You state that my reference to your client is wrong and therefore you have rejected my first sentence in my CPR 18 request dated 04-07-2011. I trust that now that I have addressed the same questions above to you specifically that you will now have the courtesy to answer these very specific questions.

 

In relation to your second sentence, you have not responded in full to the CPR 18 request and have refused to answer questions specifically relating to what documentation you have in your possession which you intend to rely on in court.

 

You state in your third sentence that the remainder of paragraph three are matters for me; however, as I have clearly pointed out to you, your client sent more than one purported “agreement” in 2010 and you have failed to confirm which agreement you have in your possession that you intend to rely on in court. You have also stated in point 12) that the agreement has previously been sent to me and you also repeat point 1 of your letter of 19 July 2011.

 

I have already stated that both sets of paperwork were sent in the same envelope and comprised reconstituted “agreements” bearing no signatures or account numbers and both bear errors which prove their inaccuracy and as such it is therefore impossible to know which agreement you are referring to or indeed if either of the purported “agreements” are actually genuine ones.

 

As it is currently impossible to know which paperwork you are referring to in your correspondence, for the above reasons, I now require you to confirm the following:-

A. Are you intending to use either of the sets of paperwork sent in 2010 – yes or no?

B. If your answer to A) is yes, I require you to confirm which “agreement” sent by your client are you intending to use in court and provide a copy of that agreement?

C. If your answer to A) is no, I require you to confirm which agreement you intend to rely on in court and provide a copy of that agreement.

 

8) I did not ask for your opinion in my request for a true copy of the alleged default notice that you claim has been sent to me.

 

I therefore request again that you provide me with a true copy of the alleged default notice and/or a copy of the relevant comms log showing issue along with strict proof of postage as proof that the default notice was indeed sent to me.

 

12) You have thanked me for confirming receipt of the agreements in 2010; however, I wish to correct your mistake and obvious misunderstanding of what you feel I have actually confirmed I received. I have never, in any communication with you or your client, confirmed receiving any agreement that I may or may not have had with Citi Financial. If you read my third paragraph again you will see that I have actually confirmed that what I received from your client was a pile of photocopied papers that your client maintained were my agreements. I would refer you to point 6) above and my specific questions in relation to this matter.

 

In light of all of the above points, your refusal to comply with Civil Procedure Rules and the fact that I have had to write yet another letter to you requesting information I am entitled to in order to prepare a defence statement, bears out my previous comments relating to your time wasting tactics in my 2nd formal CPR18 request dated 21-07-2011 and subsequent CPR 31:14 request dated 29-07-2011, that you are trying to frustrate proceedings by refusing to adhere to Civil Procedure Rules and therefore denying me sufficient time to file a defence and a counter claim.

 

Once again I repeat my request under CPR 31:14 for a copy of all of the paperwork you intend to rely on in court.

 

Yours faithfully

 

Wxxxxxx. Sxxxxx

[Undercover-Elsa]

My view is that you are giving them an unwarranted third chance to comply in that letter...you don't really have time to wait for a response before applying for an order for disclosure or strike out, Newman. If you send that you can't fairly submit the N244 till they respond.

 

Up to you.

 

If it was me I'd just take that as their final response and put the N244 in. You can argue the fine points later, if necessary.

You need a highlighter pen...when you send copies of these letters to support the application the judge will not have the time or inclination to sit reading it all. Just stick to the main points and highlight/number the relevant parts of the letters.

 

Elsa x

[BRIGADIER2JCS]

I would agree whole heartedly with that get

the N244 off asap.

 

Brig.

[newman]

My view is that you are giving them an unwarranted third chance to comply in that letter...you don't really have time to wait for a response before applying for an order for disclosure or strike out, Newman. If you send that you can't fairly submit the N244 till they respond.

 

Up to you.

 

If it was me I'd just take that as their final response and put the N244 in. You can argue the fine points later, if necessary.

You need a highlighter pen...when you send copies of these letters to support the application the judge will not have the time or inclination to sit reading it all. Just stick to the main points and highlight/number the relevant parts of the letters.

 

Elsa x

 

Very good points Elsa and I like the bit about the marker pen particularly as there are quite a few letters to attach.

 

I have just finished drafting the N244 so I will just amend it now to incorporate some of what I had prepared in my letter and then post it up.

[newman]

## UPDATE##

N244 details

 

OK here it is - I know its way to long at the moment but I am really flagging now so perhaps someone can suggest the best way to make this more concise. I fear I have gone OTT on the Waksman bit and that I need to keep this for the defence.

 

Please feel free to shoot me down in flames. I need to go and eat now as I am worn out - but very thankful for all the help recievied so far.

 

I think I know what my next steps are going to be and rather give the whole game away I will do this one step at a time.

 

N244

Box [3] of the N244 :

An order that unless within 14 days of the making of an order upon this application, the Claimant,

A) Complies with the two requests made by the Defendant on 4-07-11 and 21-07-2011 pursuant to CPR 18 for full disclosure, by the provision to the Defendant of confirmation of any information that the Claimant possesses in order to pursue legal action against the Defendant,

 

B) Complies with the Defendants further request on 29-07-2011 under CPR 31:14 that in addition to full disclosure under CPR 18, the defendant provides evidence to the Claimant of any and all documents they are relying on in this matter

 

c) Gives full disclosure under CPUTR 2008 of any documentation they hold in relation to the defendant and on which they intend to rely on in court

 

that the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant, to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's inability to comply with the Defendant's two CPR 18 requests and CPR 31:14 request, thereby making it impossible for the Defendant to prepare a proper Defence.'

 

Box 4 : 'Yes'

Box 5 : 'Without a hearing'

Ignore Box 6

Box 7 : 'None'

Box 8e: '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:

1. Firstly the Defendant takes issue with the Claimants pleadings. The Claim is a Bulk Centre claim, however, the rules on pleading apply even to the Bulk Centre and furthermore the Bulk Centre rules and guidelines state that if a Claimant cannot properly particularise the claim in 1024 characters then they should not use the Bulk Centre to issue the claim. The Claimants pleadings amount to circa 396 characters, leaving at least 628 characters available for the Claimant to plead adequately. The Defendant is embarrassed by the Claim and as the applicant has not sufficiently particularised their claim the Defendant is unable to plead or enter a defence.

 

2. On 04-07-2011, following service of the Claim Form in this case, the Defendant wrote to Mr Gavin Flynn, Head of Collections at 1st Credit requesting information pursuant to CPR 18. The defendant informed the Claimant that if the information requested was not forthcoming, it would be reported to the court that the Claimant was trying to frustrate proceedings and denying the Defendant the opportunity to file a defence and enter a counter claim.

 

A copy of the defendant’s letter of request, marked "A" is attached to this Form.

 

3. The Defendant telephoned the Claimant's solicitors, Judge and Priestley, on Monday 18-07-2011 to enquire when he could expect compliance with his CPR 18 request and he spoke with a Mr Chris Ridd. Mr Ridd informed the Defendant that he had been advised by the claimant on the 11-07-2011 that the Claimant was taking the matter back in house and that LCS Solicitors were going to be dealing with the matter. Mr Ridd also informed the Defendant that the Claimant was going to apply for a Notice of Change and that the Defendant should receive notification of this.

 

4. The defendant received a letter from the Claimants in house solicitors, LCS dated 20-07-2011 as a response to the defendants CPR 18 request dated 04-07-2011. Rather than adhering to the CPR procedures in responding to my CPR 18 request they state in their third paragraph “Rather than take the procedural point, we will respond to the questions raised and will use your numbering to respond”. They also stated stated “We will comply with the rules as to disclosure during this matter”;

 

a. The claimants solicitors have not answered the specific questions asked in my CPR request dated 04-07-2011, which only required yes or no answers; 1, 1A, 2. They have instead given answers to questions I did not actually ask.

b. LCS maintain that they are not obliged to answer question 3.

c. LCS have ignored question the first part of question 4 altogether which states “I require written confirmation of all records you hold on me relevant to this case, including but not limited to”, and have provided incomplete answers to the rest of question 4.

 

A copy of the claimant’s letter, marked "B" is attached to this Form.

 

5. In response to this letter the defendant wrote to LCS again on the 21-07-2011 with a second formal CPR 18 request asking them to address all of the points raised in his 1st CPR18 in full. This letter was faxed to LCS on 21-07-2011 at 13:50 and then sent recorded delivery which was received at their office on the 25-07-2011 and signed for by a P Bloomfield at 08:20:00 hrs. A response was requested by 13:00hrs on the 28-07-2011.

 

A copy of the defendant’s 2nd CPR 18 letter of request, marked "C" is attached to this Form.

 

6. As no response was received from LCS by the time and date the defendant had requested, he then wrote on the 29-07-2011 and made a further request under CPR 31:14 to provide evidence to the Defendant of any and all documents the Claimant intended to rely on in this matter.

 

A copy of the defendant’s CPR 31:14 letter of request, marked "D" is attached to this Form.

 

7. The defendant received a letter dated 02-08-2011 in response to the CPR 31:14 stating 7 times that his requests merited no reply. They also requested confirmation of the defendants 2nd CPR 18 request which they already were already in possession of as detailed in point 5 above.

 

Other main points to note in this letter

a. LCS have refused to comply with any request made in the defendants CPR 31:14 request

b. LCS have also tried to assert that they have already supplied the agreement they intend to use in court but they have not confirmed whether or not they have the original executed agreement. They have made reference to case of Carey v HSBC plc 2010 & paragraph 119, however, this paragraph refer to compliance with section 78 CCA requests not to enforcement by the courts following default. The claimants must be aware that if the paperwork they have referred to in bringing this case to court is falls under CCA 1974, then it retains the benefit of sec 127(3); which means that the original is needed for re-enforcement through the courts.

d. Also in the case they refer to, HHJ Waksman stated that reconstituted Agreements are not in themselves proof of execution. Paras 108 and 234 of Carey states that copies of executed Agreements must be taken directly from the original format; ie, from the original Agreement, including any variation of terms, where applicable.

e. HHJ Waksman actually stated that to satisfy Reg 7 (Copies Regs) a copy of the executed agreement in its original form was required "[108]. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form ..."

 

A copy of the Claimant’s letter dated 02-08-2011, marked "E" is attached to this Form.

 

It may be argued that:

A. the vague pleadings entered by the Claimant

B. the failure of the Claimant to comply with the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement in which the Claimant should have attached to or served a copy of any contract or documents constituting any alleged agreement with the particulars of claim (and the original(s) should be available at the hearing) and that any general conditions incorporated in the contract should also have been attached

C. the Claimant’s failure to respond to the defendants two CPR 18 requests

D. the Claimants failure to respond to the defendants CPR 31:14 request and

E. the fact that the Claimant changed solicitors without informing the Defendant,

F the fact that the claimants have stated that they are going to be relying on a reconstituted agreement and have refused to answer whether or not they have the original executed agreement

 

could be an abuse of the CPR process.

 

Confirmation of what documentation the Claimant holds in relation to this matter is essential for the proper preparation of the Defendants defence and the determination of the claim and CPR 18 affords the Defendant the right of disclosure from the Claimant and CPR 31:14 affords the Defendant a right to inspect any documents which the Claimant has in their possession on which they intend to rely on in court.

 

The Defendant is concerned that the inability of the Claimant to respond to his two CPR18 requests and his subsequent CPR 31:14 request puts him at risk of a default judgement without having the opportunity to defend himself within the deadline agreed by LCS of 16:00hrs on the 18 August 2011.

 

The Defendant therefore requests under CPR15:5 that a further extension of time is granted to allow the Claimant to comply with all of this order and to allow the Defendant sufficient time to prepare a defence should the Claimant provide the information detailed in this order

 

On a separate piece of paper to be attached to your application notice, write this:

Claim No: xxxxxxxx

Draft Order

1. Unless by 4:00pm on 19-08-2011 the claimant :-

 

A) Complies with the two requests made by the Defendant on 4-07-11 and 21-07-2011 pursuant to CPR 18 for full disclosure, by the provision to the Defendant of confirmation of any information that the Claimant possesses in order to pursue legal action against the Defendant,

 

B) Complies with the Defendants further request on 29-07-2011 under CPR 31:14 that in addition to full disclosure under CPR 18, the defendant provides evidence to the Claimant of any and all documents they are relying on in this matter

 

c) Gives full disclosure under CPUTR 2008 of any documentation they hold in relation to the defendant and on which they intend to rely on in court[/b]

 

that the claim shall stand struck out and

(i) the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court and

(ii) 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.

 

2. In the event that the Claimant shall comply with this order,

 

the Defendant shall file and serve a Defence within 14 days following receipt of all of the paperwork requested and

[ii] the Claimant shall pay the Defendant his/her costs of this application.

Edited August 5, 2011 by newman

[newman]

I have just added one last point to the "it may be argued" section wherre the claimants have stated that they are going to be using a recon agreement and have refused to answer whether or not they have an original.

 

I would reall ylike to get this off to the court on Monday as I am not going to be able to do it today so any feedback you have would be hugely appreciated. Having read through the post relating to Waksmans decision on the case that 1st Credit have cited it does seem that this will be a very essential part of my defence and I think by leaving it in there hopefully a DJ will see that they are not playing ball.

 

Big thanks again in advance ladies & gents.

[BRIGADIER2JCS]

Read it a few times, my only criticism is

will it be too long and the judge looses

interest and skims through it may be

dismissing some points arbitrarily.

 

Brig.

[newman]

Thanks Brig

 

Just saw this on my way out the door. Any thoughts on how I can cut this down - I dont want to cut out salient points but on the other hand I dont want it to be too long so that as you say the judge looses interest.

[Undercover-Elsa]

Haven't forsaken you Newman...pondering time needed...

 

Elsa x

 

PS..if that's your succinct I'd hate to see the long version!

 

 

Just kidding, LOL..it does need some, er, pruning.

I'll get my secateurs. Anyone else want to go in with the strimmer?