Urgent help required with Cabot!

[Smokieone]

Hi

 

Sorry to post this with little time to spare but I need advice re a defence for cabot for debt to cpaital 1.

 

I posted re this issue until Dec 09 and followed advice given thread below;

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?166019-Capitol-One-and-HSBC-Cedit-cards/page3&highlight=smokieone

 

in brief over the past 9 months i have done the following

 

25th October 09 - sent account in dispute letter - should not have been passed to Cabot

29th October09 - sent telephone harrassement letter to cabot.

4th Nov 09 - recieved a letter from cabot apologising for calls, but debt still remains.

17th Nov 09 - followed 42man advice of above thread re signed copy of agreement - to cabot

23rd Dec09 - No agreement recieved so sent letter stating the failure to provide this as requested and stating that i dd not acknowledge the debt to this company - tocabot

18th Jan 10 - recieved a letter from cabot stating that my request under section 78 had not been satisfied by either cap 1 or cabot. It states that for clarification te debt was purchased from Cap1 on the 1st Oct 09. they were unaware at the time that there was a dispute and an urgent request had been made to Cap1.

This letter also stated that a failure to provide the agreementin time does not afect the legality of your debt to Cabot, but merely renders the agreement unenforceable untl such a time that the agreement can be produced.

29th Jan 10 - recieved a letter stating that Cap1 are experiecing a delay obtaining information from their archives. - collection is suspended until this can be supplied.

10th feb 10 - As above

15th April 10- letter with a copy of 'Terms of your Capitol one agreement' attached - this has no date, no signature from me. Letter states collection by Cabot will resume given they have now provided what was reuested.

9th may 10 - sent letter to Cabot stating request has not been provided and that they should provide this without further delay.

18th August 10 - received a letter from Morgan Solicitors - with print outs of cap1 statements (not originals), http://i476.photobucket.com/albums/rr127/paperclips02/scan0001.jpg and http://i476.photobucket.com/albums/rr127/paperclips02/scan0003.jpg and then the same copy letter that was sent on the 15th April 10.

 

Then on the 3rd Sept I recieved court papers details s follows:

Claimant

Cabot Financial (UK) Ltd

1 Kings Hill Avenue

West Malling

Kent

ME14 4UA

Solicitors

Morgan Solicitors

5 Mitchell Court

Castle Mound Way

Rugby

CV23 0UY

01788 556390

Cabot Financial (UK) Ltd

 

Defendent

ME

Particulars of Claim

The Claimant is the assignee of a debt(S) from Capitol One, Credit card reference

2367050. Notice of assignment having been given to the defendant in writing. Despite

demand for payment *****.** remains due. The claimant claims *****.** and interest

under s.69 county court act 1984 and costs

 

I filed defence giving myself more time - but I am at a bit of a loss as to how proceed, i have been researching but I am now in a panic as I need to send my defence to the court tomorrow - should it be something like this and if so do I name Cabot or Cap1

In the Northampton County Court

 

 

 

Between

 

 

 

and

 

 

 

Defence

 

1. I, ********** am the defendant in this action and make the following statement as my defence to the claim made by

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

 

5. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed ******

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

9. In the build up to this action, on the ***** I wrote to *******requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974. (Letter attached marked Exhibit A)

****** replied to my request on the **** supplying a letter stating that they were unable to provide a copy of the original agreement and a copy of an uncompleted Application Form without any prescribed terms. (letter attached marked Exhibit B)

 

10. I wrote to **** setting out the facts that the document supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and requested that they supply the required documents.

 

11. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

13. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

14. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

15. Notwithstanding points 11 and 12, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

16. The claimant is therefore put to strict proof that such a compliant document exists

 

 

17. . Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

18. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

20. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

21. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

22. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

23. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

24. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

I am not sure what to do so any help at this late stage would be greatly appreciated

 

Thanks

[Smokieone]

Hi

 

quite panicky now can any one advise

 

thanks in advance

[cymruambyth]

Hi, if you haven't received any documents from Cabot you could file a brief embarrassed defence stating that you have nothing to base your defence on.

 

eg

1. I, XXXX of XXXXX make this statement as my defence to the claim brought by XXXXX.

 

2. The claimant’s particulars of claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR, even allowing for the constraints of the bulk issue system.

 

3. No documents supporting the claims in the particulars have been offered and despite two requests to the claimant for further information via CPR 31.14 dated XXX 2009 and XXXX 2009, both sent by recorded delivery, none has been forthcoming and as a result I cannot plead in defence to the claim.

 

4. Without clarification of the claimant’s claim, the defendant is extremely disadvantaged and as the claimant’s claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

 

5. Further to the above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

Statement of truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

Signed:

XXXX

XXXX 2009

You could also press triangle at the bottom at bottom of the page to ask site team for help.

[AndyOrch]

The Claimant is Cabot so that who you state in the header.

I must agree with Cymrau the shorter holding defence is ample at this stage. Retain some argument for later in the process, as the Claimant does in their Particulars.

 

 

Regards

 

Andy

[Smokieone]

Thanks guys

 

I am posting the 'embarrased' defence now - what happens next - do I wait for Cabot to produce something back to the court or me directly?

[AndyOrch]

You will receive conformation from Northampton they have received and forwarded to the Claimant.They have 28 days to respond and proceed.If not the claim will be stayed.If so you will receive an AQ to complete and this transferes the claim to your local County Court.

 

Andy

[Smokieone]

Thanks Andy - I will wait to see what is recieved then.

 

Sorry just one last question does the 28 days apply from today - the deadline for my defence or from the date on the court letter

 

Thanks

[AndyOrch]

Date on the Court Notification Smokie.

 

 

Andy

[Smokieone]

Hi

 

I have recived two letters over the past three days,

 

The first was a letter to myself stating that the case had been allocated to my local court which I think is normal from what I have read. Included with this was an allocation questionaire that I need to return to the court by the 29th October 2010. - I am not sure how to deal with this.

 

The second letter was recieved today from Morgans solicitors - sorry no scanner so I have had to copy type

 

cabot financial V me

 

Please find enclosed the claimants allocation questionaire, together with a schedle of dates of unavailability.

 

We have also attached a copy of the credit agreement signed by you containing the prescibed terms and te full terms and conditions which represent the latest applicable to your acount for current information purposes.

 

Further more you will find statements in relation to the account attached and the claimants statement of account, showing all financial activity on the account since assignment.

 

If you wish to reconsider your position upon perusal of this documentation, the claimant is always willing to settle this matter amicably and accordingly invites your proposals for doing so.

 

A few things I have noticed will try and scan on Monday from work but the first statement on the alledged agreement states, 'please issue me a Capitol Once credit card and pin'. Is this an agreement or my application form as it goes onto say that checks will be made with credit reference agencies etc.

 

there also looks like a bar code has been stick on this letter, which would not have been there when I signed it as it is over some text.

There is also a doc entitled 'Credit agreement regulated bythe consumer credit act 1974'. These terms are taken from clauses 8, 10 and 23 of the terms and conditions you signed with us. but I have not recieved this signed document. This doc does have some % charges quoted but I am not entirely sure what prescribed terms I should be loking for - I am sure in the past though the concencus from the CAG was that the agreement was not right.

 

I am not sure how to complete the allocation questionaire or whether or not I should have receieved a default notice from Capitol One and Cabot or whether I should have recieved a notice of assignement from cabot - aaaah this is complicated

 

Any advice from the CAG would be grately appreciated

 

Thanks in advance smokieone

[Smokieone]

Bump - any advice would be greatly recived

[DonkeyB]

Can you scan and post the ‘agreement’ and the T&Cs?

[AndyOrch]

Make sure you return the AQ on time you can sift through their gobbledygook after.

 

Regards

 

Andy

[Smokieone]

Hi Andy

 

I will scan docs at work tomorrow - how do I know what to put in the allocation questionaire, are there standard responses to these answers

[AndyOrch]

I will walk you through this tomorrow Smokie.

 

Regards

 

Andy

[Smokieone]

Thanks Andy - your help is appreciated

 

Smokie

[AndyOrch]

Have you sent a copy of this completed form to the other party

Yes (when completed and dont sign)

 

A. SETTLEMENT

 

For All

 

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage?

 

Yes

 

Reasons

:

Without production of the requested documents, I am at a disadvantage and am unable to negotiate a settlement without the full facts.

 

B. LOCATION OF TRIAL

 

Is there any reason why your claim needs to be heard at a particular court?

NO

 

C. PRE-ACTION PROTOCOLS

 

You are expected to comply with the relevant pre-action protocol.

 

Have you done so?

No

 

If No, explain why?

 

This case is not covered by any approved protocol; I have tried to act reasonably in exchanging information and documents relevant to the claim but have had no response from the claimant in this regard.

 

 

 

D. CASE MANAGEMENT INFORMATION

 

What amount of the claim is in dispute?

£XXXXXX (amount less court fee/sol fee)

 

Applications

Have you made any application(s) in this claim?

NO

 

Witnesses

 

Xx xxxxx All the facts in the case (yourself)

 

Experts

No

 

Track

Fast Track

 

If you have indicated a track which would not be the normal track for the claim, please give a brief reason for your choice:

 

Its is respectfully requested this case be allocated to the Fast Track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

 

 

E TRIAL OR FINAL HEARING

 

How long do you estimate the trial or final hearing will take? 3

Hours

 

Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or hearing?

YES

 

 

 

F PROPOSED DIRECTIONS

 

Have you attached a list of the directions you think appropriate for the management of the claim?

Yes

 

If Yes, have they been agreed with the other party?

NO

 

G COSTS

 

Leave blank

 

H Fee

 

I OTHER INFORMATION

 

Have you attached documents to this questionnaire?

YES

 

Have you sent these documents to the other party

YES

 

If Yes, when did they receive them?

 

Do you intend to make any applications in the immediate future?

YES

 

If Yes, what for?

 

An order seeking the Claimants compliance with information previously requested.

 

In the space below, set out any other information you consider will help the judge to manage the claim.

 

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 below 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, I am at a disadvantage and am unable to serve a proper 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

 

Its is respectfully requested this case be allocated to the Fast Track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further.

 

 

 

DRAFT ORDER FOR DIRECTIONS

(Edit to suit your requirements)

 

 

In the ************* county court

Claim number **********

 

 

Between

 

 

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

 

 

 

 

and

 

 

xxxxxxxxxx - Defendant

 

 

 

 

Draft Order for Directions

 

 

 

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

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.
  
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
  
• Document, contract or deed of assignment
  
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
  
• Copies of any statement or other document relied upon
  
  

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

 

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

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

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

 

 

Regards

 

Andy:wink:

[Smokieone]

Hi Andy

 

Thanks so much for this - just one quick question - where it states witnesses and you have put

Xx xxxxx All the facts in the case (yourself)

 

Do I just put my name or should I be putting something else

 

Thanks

 

Also can I hand deliver this to the court? or file it on line - I am at work at moment and will not be able to complete until tonight?

 

Thanks again

[AndyOrch]

Hi Andy

 

Thanks so much for this - just one quick question - where it states witnesses and you have put

Xx xxxxx All the facts in the case (yourself) Just your name

 

Do I just put my name or should I be putting something else

 

Thanks

 

Also can I hand deliver this to the court? Yes or file it on line No - I am at work at moment and will not be able to complete until tonight?

 

Thanks again

 

(You can download to screen and complete and print 3 copies (looks far more professional)

Regards

Andy

 

 

[Smokieone]

Sorry one last question - 3 copies - one for my records, one for court and send one to Cabot Solictiors?

[AndyOrch]

Yes its considered good practice and its the first question on the AQ. If you exchange they will too and give you an heads up of their intentions.Dont sign their copy though only the Courts.

 

Regards

 

Andy

[Smokieone]

Thanks for your help Andy - AQ duly hand delivered to court office today and copy in post to other side

 

Help is appreciated

 

Smokie

[Smokieone]

OK - I have recieved a letter from Morgans Solicitors over the weekend, it reads;

 

Please find enclosed a copy of the claimants application to strike out your defence. This application has been filed with the court together with the requisite hearing fee. The court will give the parties notice of the hearing of the claimants application in due course.

 

The application notice gives basic detail but under the question ' What order are you asking the court to make and why?' they state the following;

 

1. That the defendants statement of case be struck out pursuant to the Civil Procedure Rules part 3, Rule 4 (2)(b) on the basis that it is an abuse of the courts process or is otherwise likely to obstruct the just disposal of these proceedings; and

 

2. The judgement be entered for the claimant pursuan to Practice Direction 3A of the civil procedure Rules, rule 4.2

 

3. The Claimant asks that the order be made in accordance with the terms of the draft order provided.

 

They go on to suggest that the hearing will take 45 mins and request a hearing and that the defendant should be served the application.

 

The evidence that they will rely on is given as;

 

1. On ** April 2010 the claimant provided to the defendant a copyof the credit agreement with the terms and conditions that were applicable for current information purposes.

2. On *** September 2010 the claimant issued proceedings against the defendant for the sum of £*****.**. The claimant brings the claim as the legal assignee of the defendants credit card acount with Capitol One. Notice of assignment having been given to the defendant, the claimant claims to be entitled to the sum as stated in the particulars of claim.

3. On ** October 2010 the claimant filed and served its allocation questionaire. Upon doing the same the claimant both filed with the court and served a copy of the credit agreement signed by the defendant, containing the prescribed terms and the full ters and conditions which represent the latest applicable to the defendants account. Moreover the claimant filed and served statements in relation to the defendants account and the claimants statement of account, showing financial activity on the same since assignment.

4. On ** November 2010 the claimant recieved a copy of the defendants allocation questionaire. Attached to this was a draft order for special directions. The first of those directions was for a copy of the credit agreement which the claimant seeks to rely upon and the last of those directions , was for a copy of statements.

5. The claimant has already provided this information concerning its claim and it is submitted that is is now untennable for the defendant to maintain that she is either unable to plead a proper defence or negotiate concerning this matter.

6. It is submitted that the defendants draft order for sprecial directions pertaining to information which she has already recieved; some of which she has been in possession of since April this year, is entirely unreasonable and suffices to amount to an abuse of the courts process or otherwise obstructs the just disposal of the proceedings.

7. Accordingly the claimant requests tha the court strike out the defendants statement of case pursuant to the civil procedure rules, part 3, rule 4 (2) (b)

8. Furthermore it is requested that the judgement be endered for the claimant in the sum of £*****, pursuant to practice direction 3A of the civil procedure rules. rule 4.2 and that the defendant pay the claimants costs.

 

The draft order states that my defence be struck out, judgement be entered and I pay within 14 days plus their costs.

 

I would appreciate advice with regards to what I am supposed to do next - I will scan the credit agreement tomorrow and try and upload it for people to see and comment on.

 

Will I have to go to court at this stage?

 

how long will this next stage take do I just wait for the court to contact me?

 

Thanks again for advice

 

Smokie

[AndyOrch]

Defences which appear to fall within rule 3.4(2)(a) or (b)

 

3.1

 

A court officer may similarly consult a judge about any document filed which purports to be a defence and which he believes may fall within rule 3.4(2)(a) or (b).

 

3.2

 

If the judge decides that the document falls within rule 3.4(2)(a) or (b) he may on his own initiative make an order striking it out. Where he does so he may extend the time for the defendant to file a proper defence.

 

3.3

 

The judge may allow the defendant a hearing before deciding whether to make such an order.

 

3.4

 

Alternatively the judge may make an order under rule 18.1 requiring the defendant within a stated time to clarify his defence or to give additional information about it. The order may provide that the defence will be struck out if the defendant does not comply.

 

3.5

 

The fact that a judge does not strike out a defence on his own initiative does not prejudice the right of the claimant to apply for any order against the defendant.

 

 

 

 

Applications for orders under rule 3.4(2)

 

5.1

 

Attention is drawn to Part 23 (General Rules about Applications) and to Practice Direction 23A. The practice direction requires all applications to be made as soon as possible and before allocation if possible.

 

5.2

 

While many applications under rule 3.4(2) can be made without evidence in support, the applicant should consider whether facts need to be proved and, if so, whether evidence in support should be filed and served.

[Smokieone]

Sorry Andy dos the above mean I have no case - sorry woken up with a bad cold this morning nad very fuzzy headed just having trouble getting my head round it all!

[Smokieone]

Hi again

 

I have in the past few days received a Notice of hearing Application - this is set for my local county court for the 24th January 2011.

 

I am really nervous I do not understand what wil happen at the hearing - Cabots Draft directions are the sames asI have previously posted - is this a comon thing too happen. I don't think I would have he confidence in my knowledge to speak for myself.

 

They are stating that they have provided all information required but the credit agreement from Cap One posted previously on here was thought to be unenforceable - so what happens now

 

Could I get some one to represent me at this hearing - is this possible / permitted

 

Any help would be apreciated as I am away fro the 28th Dec to 15th Jan so I am a bit panicky as time is tight!!

 

Thanks in advance