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

[newman]

When is your defence due? forget compensation concentrate on winning the claim.

Im subscribed to your thread now so ill pop in nearer the time. Elsa is doing a sterling job.

I do need to check your application over properly though before you dispatch it.

 

Andy

 

Hi Andy the defence is due 4pm on the 18th August but I will be submitting a N244 on Mon/Tuesday hopefully and requesting an extension so according to a very nice lady at the court I spoke to a few weeks ago this will then get top priority and a bar on judgement will immediately be in force until a DJ has looked at it which will apparently take a few weeks.

 

Very much appreciate you looking over anything I am about to submit.

[AndyOrch]

I will rephrase that to " Should not" then DKDC

 

If a debtor queries a debt, and money that is owed, it is unfair for the creditor to continue with recovery proceedings during the time the debt is being disputed.

(OFT guidlines debt collection and Unfair Practices)

 

CCA s78 (6) in default of your lawful requestmeans they cannot take further action.

 

 

A Creditor Cant/shouldnt sell your account while in official dispute and they have not sent a letter giving you the oppertunity of passing it up to the fos if they reject your dispute

Not that any of that applies to Newmans case.

Regards

Andy

 

 

 

 

 

 

 

 

 

 

Edited August 6, 2011 by Andyorch

[AndyOrch]

Good morning Newman

 

Back to the Application have you sought the Claimants agreement re an extension and have they confirmed in writing ( a must before you make application) then you attach it to your application.

 

As your defence is due on the 18th August why are you making application for said extension and what further documents are you requesting?

 

I am somewhat confused as to why Elsa has included Directions within an application.

 

Andy

[AndyOrch]

Absolutely DontKnow hence my post "should"

 

Andy

[newman]

Good morning Newman

 

Back to the Application have you sought the Claimants agreement re an extension and have they confirmed in writing ( a must before you make application) then you attach it to your application.

 

As your defence is due on the 18th August why are you making application for said extension and what further documents are you requesting?

 

I am somewhat confused as to why Elsa has included Directions within an application.

 

Andy

 

Hi Andy - not sure if you have read all of this thread but it might help if you can do this (or at least read the threads since beginning of July) as your questions are already covered in previous posts and this is going over ground already covered. - in a letter dated 19th July 2011 (this was LCS's response to my 1st cpr 18 request) - LCS agreed to an extension to the 18th August which I immediately faxed off to the court and called them to let them know that they had agreed to this and that I had faxed the letter.

 

The reason we are making the N244 is that 2 cpr 18 & one 31:14 request have all been ignored and LCS have refused to say what docs they have and no documentation has been provided against which I can prepare a defence, so an extension is needed because of their non compliance

 

I dont know the answer to your last question - that is one for Elsa - Elsa can you help here please.

[Undercover-Elsa]

Hi folks,

That was in response to the fact that they have flatly refused to supply the docs, whilst time is ticking on, and flatly refused to give a further extension, saying in order to get one Newman would have to make an application. I understood that in those circumstances an unless order was the way to go?

I was guided by Pts quotes, and I'm still learning this subject as I go along, which is why I've asked for it to be double checked by others and altered if it's wrong

 

Be guided by Andy in this Newman, he knows far more than I do, and if I've got it wrong then let's put it right and learn from it.

 

Andy - we're in your hands, how would you do it?

 

Elsa x

[AndyOrch]

Hi folks,

That was in response to the fact that they have flatly refused to supply the docs, whilst time is ticking on, and flatly refused to give a further extension, saying in order to get one Newman would have to make an application. I understood that in those circumstances an unless order was the way to go?

I was guided by Pts quotes, and I'm still learning this subject as I go along, which is why I've asked for it to be double checked by others and altered if it's wrong

 

Be guided by Andy in this Newman, he knows far more than I do, and if I've got it wrong then let's put it right and learn from it.

 

Andy - we're in your hands, how would you do it?

 

Elsa x

 

 

Its not wrong Elsa (too in depth if anything) but the application is to request an order and a brief explanation why its being sought.You request the Order the DJ considers it and then he issues the directions.

 

So the order requested is an extension pursuant to CPR15 as the Claimant as failed to agree and disclosure of various information/documents requested via CPR 18.1

which the Claimant as again refused to respond to. Ask for costs in this application to be considered.Attach all correspondence and responses to the application.

 

Heres a recent one of mine :- Advice needed on court summons ***Discontinued****

 

Andy

[AndyOrch]

Newman what documents are you still waiting to be furnished ?

 

I ask this before you make application.You have the reconstituted and maybe even the original agreement.

You have the NoA

Not sure if you have the DN?

Not sure if you have statements for the debt?

 

Assuming the Judge directs disclosure and extension and they disclose

what is the bases of your defence.?

 

At best he may direct disclosure and issue the Unless Order they cant comply

but he may not decide to strike out and then you will have to submit a defence.

Edited August 6, 2011 by Andyorch

[Undercover-Elsa]

Ahhh thanks Andy. Neat case on that thread!

 

I thought we could go for a strike out at the same time..going from a template surfaceagent did (which I blended with yours as I liked it better, LOL)

 

Here's what I was working from (its an amalgamation of Pt's/SX20's threads I put together)

pt-legal issues-compilation.pdf

[newman]

Hi folks,

Be guided by Andy in this Newman, he knows far more than I do, and if I've got it wrong then let's put it right and learn from it.

 

Andy - we're in your hands, how would you do it?

 

Elsa x

 

Thanks Elsa very happy to be guided by Andy - and you have done a sterling job too!!

[AndyOrch]

As evidence then by all means use X20s description as to why you are requesting the order. Its a Draft Order though Elsa not a Draft order of Directions.

Thats were i was confused.

 

Claim No:

Draft Order

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant

 

on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned

 

in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request

 

for example, [1] the agreement [2] the default notice and [3] the assignment,]

 

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, and

 

[ii] the Claimant shall pay the Defendant his/her 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 by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event]

 

[assessed in the sum of £130.00]

 

[newman]

Newman what documents are you still waiting to be furnished ?

 

I ask this before you make application.You have the reconstituted and maybe even the original agreement.Well I actually have 2 recons so I haveno idea which one they are referring to when they say O already have one

You have the NoA Yes - I actually have two of those two (they seem to like to have braces of everything

Not sure if you have the DN? NO DN issued at all and no notification received that they were going to put default on my CF. There is a very good thread which gives a very detailed defence around a dodgy default notice being dsent out but cant remember where it is at the moment (I will post the link if I can find it again)

Not sure if you have statements for the debt? Yes I have statements right up until a few days before they sold it to 1st Crud

 

Assuming the Judge directs disclosure and extension and they disclose

what is the bases of your defence.? Basis of my defence - no DN issued & no proof an actual executed agreement exists, if you look at the POC they are trying to claim statutory interest and not only that they are claiming it for a period when the account was in dispute - Let me come back to this later - Elsa - anything I have missed???? -

 

At best he may direct disclosure and issue the Unless Order they cant comply

but he may not decide to strike out and then you will have to submit a defence.

 

..

[Undercover-Elsa]

LOL gotcha. I need to lose the directions..

 

In my travels around the country, I've managed that often enough...

[newman]

As evidence then by all means use X20s description as to why you are requesting the order. Its a Draft Order though Elsa not a Draft order of Directions.

Thats were i was confused.

 

Claim No:

Draft Order

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant

 

on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned

 

in the Particulars of Claim, namely The only problem here Andy is that the only document mentioned in the POC was the assignment notice and based on thjat I issued the CPR 18 request and then after that the CPR31:14[here list the documents sought in the CPR 31.14 request

 

for example, [1] the agreement [2] the default notice and [3] the assignment,]

 

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, and

 

[ii] the Claimant shall pay the Defendant his/her 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 by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event]

 

[assessed in the sum of £130.00]

 

 

..

[AndyOrch]

LOL gotcha. I need to lose the directions..

 

In my travels around the country, I've managed that often enough...

 

[newman]

I have tpo go out now guys but will be back later - will take lap top with me as we are visiting mother in law later so Iwill sign back in then

[AndyOrch]

Ok Newman same here im out shortly you can simply amend the draft order to state CPR 18.1 and lose the word Documents and replace

with Clarify Information pertaining to your request.My short version on the other thread keeps it simple sometimes too much detail fudges the issue and digs a bigger hole to fall into. Keep it simple.

 

 

Catch up with you later.

 

Andy

[Undercover-Elsa]

My last post for the moment too, with the amended order for approval:

 

DRAFT ORDER

Between

************* - Claimant

 

and

 

xxxxxxxxxx - Defendant

 

Draft Order

 

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

1.Copies of the Agreement and any documents/terms and conditions referred to within, which the claimant seeks to rely upon.

2. A copy of the Default Notice and Proof of Postage

3. A current full statement of account showing how the balance claimed is calculated

4. The Termination Notice

5. The Notice of Assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

6. 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.

In the event that the Claimant shall comply with this order

1.The Defendant shall within 14 days thereafter file his defence

2.The Claimant shall pay the Defendant the costs of this application

[assessed in the sum of £xxx]

 

Better?

[Undercover-Elsa]

Thanks for clarifying Andy...have fun y'all

[newman]

##Greetings one and all##

 

Having not been in front of the screen very much over the weekend I seem to have lost the plot a bit. I want to get the N244 to the court today or tomorrow if that is at all possible and I have summarised the relevant threads that relate specifically to the wording of the main parts.

 

Can you wonderful people please cast your eyes over this and make any changes, suggetions, amendments so that we can reach an agreement on what the final wording is going to be. I know Elsa had a good old hack at my first version and if there is further pruning to do I would really like to think this can be done todya or tomorrow so that it can all go off. Personally I thinlk that Elsa's suggestions are excellent but I am more than willing to take the advice of the experts here

 

Again huge thanks in advance.

 

N244

Box [3] of the N244 :

An order seeking the Claimant's compliance with information and documents requested pursuant to CPR part 18 and CPR 31.14 and an extension of time pursuant to CPR 15:5. Should the claimant fail to respond to the defendants draft directions that the claim shall stand struck out without further order and costs to be considered and summarily assessed.

The application is made because of the Claimant's refusal 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 particulars of claim made no mention of an agreement regulated by the Consumer Credit act 1974, upon which the claim is based, nor a Default Notice which is required under s87 before enforcement of such an agreement can take place. This has necessitated seeking confirmation from the Claimant via part 18 requests on 04/07/2011 and 21/07/2011, and a CPR 31.14 request on the 29-07-2011.

2. In response to the request for a copy of a signed agreement relating to the claim, the Claimant stated: "You have been provided with the agreement upon which we intend to rely. You acknowledged receiving it in your letter dated March 2010"

The defendant would clarify here that the agreement to which the Claimant refers was not a copy of a signed original agreement. What were supplied were two different reconstituted versions in response to a s77-79 request. Both inaccurate yet purporting to be an agreement which the defendant had signed. No indication has been given which of these two agreements the Claimant intends to rely on in Court. Furthermore the defendant does not believe that supplying conflicting reconstituted agreements more than a year ago is sufficient to satisfy the current 31.14 request for a copy of a signed agreement pertaining to this claim, and necessary for enforcement under s. 127(3) of the Consumer Credit Act 1974.

3.In response to the request for a copy of the Default Notice (and/or a copy of the communications log recording issuance plus proof of posting), the claimant simply stated: "You were advised that you were sent a default notice in May 2007" and "we further take the view that you are able to file and serve a defence in the absence of a default notice"

The defendant has never received a default notice, and no documentary evidence of issuance has been supplied by the claimant. The defendant respectfully points out that agreements regulated by the consumer Credit Act 1974 cannot be enforced until a compliant Default Notice has been issued.

The defendant therefore believes that evidence of the Default Notice is crucial to this case.

4. In response to a request for a current statement of account to show how the amount claimed is calculated, the claimant responded

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

5. In response to a request for further time in order to prepare a defence following production of these documents, the claimant responded:

"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"

[Reference: The defendant's "fourteenth paragraph" was the request for additional time.

The claimant's "last paragraph" stated "As to your defence, we are instructed to consent to an extension of time. As the original limit was to expire on 21 July 2011, we will agree to an extension to 4pm on 18th August 2011. If you require further time you will be required to make an application."]

The defendant feels that this response is intimidating and unreasonable in the light of the Claimant's refusal to comply with disclosure.

　

The Defendant appreciates that his inexperience as a Litigant in Person led him to include far more in the CPR requests than, with hindsight, should have been included. However the core elements were valid requests and were specifically refused. Copies of the correspondence are enclosed, with the relevant points highlighted for ease of reference.

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order. The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined above are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, the defendant is at a disadvantage and unable to serve a particularised defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case. The Defendant is concerned that the refusal 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

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

DRAFT ORDER FOR DIRECTIONS

 

DRAFT ORDER

Between

************* - Claimant

 

and

 

xxxxxxxxxx - Defendant

 

Draft Order

Unless by 4pm on (date) the claimant complies with requests made by the defendant on 04-07-2011- and 21-07-2011 pursuant to CPR 18 and on 29-07-2011 pursuant to CPR 31:14 to clarify information pertaining to the defendants request and provide copies of the following documentation:-

1.Copies of the Agreement and any documents/terms and conditions referred to within, which the claimant seeks to rely upon.

2. A copy of the Default Notice and Proof of Postage

3. A current full statement of account showing how the balance claimed is calculated

4. The Termination Notice

5. The Notice of Assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

6. Copies of any statement or other document relied upon

 

The claim shall stand struck out and the defendant shall be at liberty to enter judgement against the claimant without further order of the court and [ii] the Claimant shall pay the Defendant his/her 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.]

 

In the event that the Claimant shall comply with this order

1.The Defendant shall within 14 days thereafter file his defence

2.The Claimant shall pay the Defendant the costs of this application

[assessed in the sum of £xxx

Edited August 8, 2011 by newman

[AndyOrch]

##Greetings one and all##

 

Having not been in front of the screen very much over the weekend I seem to have lost the plot a bit. I want to get the N244 to the court today or tomorrow if that is at all possible and I have summarised the relevant threads that relate specifically to the wording of the main parts.

 

Can you wonderful people please cast your eyes over this and make any changes, suggestions, amendments so that we can reach an agreement on what the final wording is going to be. I know Elsa had a good old hack at my first version and if there is further pruning to do I would really like to think this can be done today or tomorrow so that it can all go off. Personally I think that Elsa's suggestions are excellent but I am more than willing to take the advice of the experts here

 

Again huge thanks in advance.

 

N244

Box [3] of the N244 :

An order seeking the Claimant's compliance with information and documents requested pursuant to CPR part 18 and CPR 31.14 and an extension of time pursuant to CPR 15:5. Should the claimant fail to respond to the defendants draft directions that the claim shall stand struck out without further order and costs to be considered and summarily assessed.

The application is made because of the Claimant's refusal 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: (see attached Draft Order)

DRAFT ORDER

Between

************* - Claimant

 

and

 

xxxxxxxxxx - Defendant

 

Draft Order

Unless by 4pm on (date) the claimant complies with requests made by the defendant on 04-07-2011- and 21-07-2011 pursuant to CPR 18 and on 29-07-2011 pursuant to CPR 31:14 to clarify information pertaining to the defendants request and provide copies of the following documentation:-

1.Copies of the Agreement and any documents/terms and conditions referred to within, which the claimant seeks to rely upon.

2. A copy of the Default Notice and Proof of Postage

3. A current full statement of account showing how the balance claimed is calculated

4. The Termination Notice

5. The Notice of Assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

6. Copies of any statement or other document relied upon

 

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 and [ii] the Claimant shall pay the Defendant his/her 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.]

 

In the event that the Claimant shall comply with this order

1.The Defendant shall within 14 days thereafter file his defence

2.The Claimant shall pay the Defendant the costs of this application

[assessed in the sum of £xxx

 

 

 

And thats all you need Newman dont use an application as a defence you want to keep the DJ on your side.

 

Andy

[newman]

Hi Andy

 

Sorry to be a total thcko here but in box 10 do write out the exact wording of the draft order or just write "See attached draft order"

 

just want to be 100% certain I have it right.

[AndyOrch]

Hi Andy

 

Sorry to be a total thcko here but in box 10 do write out the exact wording of the draft order or just write "See attached draft order"

 

just want to be 100% certain I have it right.

 

If it will fit yes if not attach.

 

Andy

[BRIGADIER2JCS]

That's a lot more concise, wont put

the judge to sleep.

[newman]

If it will fit yes if not attach.

 

Andy

 

Cheers Andy - phew we got there in the end!

 

It was interesting when I spoke to the lady at the court about the N244 process that LCS will not be informed that I have put in the N244 and if they then go for summary judgement on the deadline it is then that they are told that there is a bar on judgement:) I would love to be a fly on the wall on the day they find out that they cannot force judgedment.

 

As a reminder to what the lady said at the court when I called to ask about the N244 process from post #265 I have copied part of the post below.

 

This is now going to be a waiting game and its then down to preparing my defence which I am sure I will ned fiurther help with (and no doubt Elsa & Andy will put on their gardenning gloves and get out the hedge trimmers, lawn mowers, strimmers, secateurs and chain saw to rip it to bits:)

 

ANOTHER UPDATE - RE THE N244icon PROCESS

 

Well now that the Novacaine has finally worn off I called the NBCC and spoke with another very helpful lady called Sharon. The telephonists there are all so nice and helpful which is very refreshing

 

I explained exactly what you told me to do Elsa re the wanting to put the "unless the Claimant complies" bit into the N244 and this is chapter and verse what she said.

 

Firstly when I put in the N244 I have to put in that I want an extension as per CPR 15:5 and this is then given top priority and it means that the application will be dealt with there and then on the same day and there will be a bar on judgement applied immediately.

 

They then send the N244 off to the District Judge who assess it and then sends it back with his directions on there - good or bad depending on how you look at it!

 

When the court eventually receives the DJ's directions they then "draw up an order", which she qualified as meaning that the court will write a letter to both the Claimant and me informing us of the DJ's directions.

 

The date that this letter is written is the date at which the 14 day clock for compliance with CPR 18 starts to tick.

 

I did ask if anything goes to 1st Crappy but apparently they dont even get notified that the form has been submitted. Sharon did say that either LCS or 1st Crappy may contact the NBCC after the deadline of 16:00hrs Monday 25-01-11 but at that point they would be informed that the case has been refferred to the DJ.

 

Sharon also said that they could try to force a judgement as there will not have been any defence submitted by the deadline but it would be at this point that they would be told there is a bar on judgement in force until the DJ has given his directions.

 

I asked if I had to write to the Claimant and inform them of what is happening but this is not needed and so it looks like we will have a three to four week wait whilst the DJ looks at this.

Edited August 8, 2011 by newman