Arrows/Blake claim form old HBOS Card 'debt'

[sev67]

Hi if anyone is able to assist. The info provided by sols is;

1) copy agreement

This is clearly not a copy of the consumer credit agreement, for a start it says page 4 of 8 at the bottom, where are the other pages and where is the signature? Also the attached terms and conditions have my name and address on so how can they be part of any original signed agreement (I've only included one of the eight pages of t&c's in the 'all paperwork' attachement).

2) copy default notice

This is an exact copy of the copy sent to me, ie the solicitors have blacked out all personal details not me. Therefore the copy they have sent doesn't even have my name and address on it, how can they claim this is a copy of a default notice served, this is merely a sample of one.

3) copy notice of assignement

They were ordered by the court under N244 and under their own variation, to supply the 'assignment' not the 'notice of assignment'. Plus this notice of assignement appears to be equitable and not absolute so surely they should be bringing this case jointly with Halifax.

 

On this basis, I'm thinking I need to submit another N244 form demanding the original copies of the paperwork, and not these reconstituted copies. Or do I submit an N244 asking for the case to be stayed whilst they find the original copies once and for all?

 

ref - Pt2537 says in his pt-legal-issues-compilation-1.pdf attachment "If the Claimant cannot disclose then you cannot plead." http://www.consumeractiongroup.co.uk/forum/showthread.php?324336-Link-Financial-%28MBNA%29-County-Court-Claim-Form-Received-Please-help-if-you-can&p=3595288&viewfull=1#post3595288

Also if I submit a defence on what they have provided then "Once the defendant has filed a defence and defended on the merits he is taken to have acquiesced" (ie. consented to them as correct copies).

 

Help. Can anyone point me in the right direction here, is a new N244 application needed to get the correct copies?

[AndyOrch]

Depends on what type of defence you plead whether you have acquiesced.Simply submit an holding defence detailing your efforts thus far and their response.

If what they have disclosed is unsatisfactory then state so and the reasons.Seems what they have disclosed is the best you can hope to get so any further applications would be pointless.N.B Sev check with the Court your date if 29th stands you make have to submit by 4.00pm today.

 

Regards

 

Andy

[sev67]

Can I get them to agree to an extension under cpr15.5 to 28 days if I call them this afternoon. The info they sent me should have been with me by sat 15th Oct, but only received it on monday 17th oct. I'm getting my time cut down at both ends if I have to send it in today by 4pm.

[AndyOrch]

You could try but what will change within another 28 days? you have had their response a fortnight already and have left it to the eve of submission date.

 

Andy

[sev67]

Hi Andy if you are there, is this ok to use.....

 

I have to submit this by 4pm so any help appreciated please. Do I need to finish it off with anything else? Is it ok?

 

I, xxxx, of address..... make this statement as my defence to the claim brought by xxx.

 

[AndyOrch]

Ok Sev just submit it, I have no time to advise at the moment, we can tighten it at AQ.

 

Regards

 

Andy

[sev67]

Thanks Andy. Spoke to court who said I could email it to them, which I have done and retained a delivery receipt for proof. They said there is a 5 day backlog.

 

What next - I don't want to get caught out again?

[DonkeyB]

Problem is you had two weeks in which you could have applied to the court for an order making them produce the correct documents – all they have supplied is recons, which are fine for a s 78 request, but which should be useless for enforcement.

[sev67]

What should I have done then DB, useful for all to know. How would I have applied to the court, through another N244? Why couldn't I have done that earlier today?

[DonkeyB]

Well, you could have! But it would still have been very late in the day – done earlier, you could have simply written to the court and explained that the earlier order had not been fulfilled, and requested a further ‘unless’ order.

 

Think you’ll have to play the ignorant LiP trick.

[Guest]

donkeyb

didn't sev do the application!, and then the court gave them more time. and they have now produced some docs in time? whether the docs provided are sufficient or not would be for the court to decide at hearing.

Edited October 28, 2011 by Ford

[sev67]

I thought that was what was needed but I couldn't get the support quick enough on the forum, which of course is my own fault for only asking the question last night. Its very hard finding the time to do everything when you have a young demanding family (school hols this week), relentless pressure from creditors and an ocean of threads to read to get an answer to one question. I got a bit rabbit in the headlights and then before I knew it I was out of time.

 

To get to the point, sorry - I thought I was allowed to include another draft 'unless' order when I send back the AQ (after issued). Are there any example threads where someone has issed a draft order stating the claimant has not fulfilled an earlier order. (this is where I also went wrong with another case by not following up properly after the draft order was issued - this appears to be a vitally important step which I feel isn't highlighted strongly enough on the forum plus the obvious permutations such as this one are left unanswered).

[Guest]

but, didn't they comply with the order in time? you said earlier that they were given more time and sent docs in time? as i suggest, whether the docs supplied are sufficient or not would be for the court to decide at hearing. they 'believe' that they have complied.

[sev67]

My N244 gave them the first deadline, then they applied for a variation to get more time, and then did the same thing another month later. The clerk told me they requested further time before each deadline. They sent the attachements in second class post dated 14th Oct the day before the last deadline which arrrived with me late on the 17th. (rhetorical question, how come the claimants get to do things late but the minute the defendant does they get wiped out).

 

Point being, DB was saying they haven't fulfilled the draft order and I should have sent anther draft order in time before my defence was due in. As soon as a draft order N244 is issued nothing else can happen until the judge has looked at it, it suspends everything and any deadlines are halted until new orders are given by the judge.

 

So question again - what should I have done please DB as I will use it when I do the AQ return...?

[Guest]

ok

so you received the docs a couple of days after the deadline (do you have proof of this). yes, you could've done an application re that saying that you received docs 2 days after deadline requesting such and such. but, you didn't. and, you can now mention the fact that you received the docs 2 days after the ordered deadline. you could still do an application on this if you want to try and rely on that.

Edited October 28, 2011 by Ford

[DonkeyB]

Looking at the docs they have provided, I’m concerned about the DN. They have blacked out all the dates. How could you, or a judge, know if the DN gave enough time for remedy? Bit disingenuous of them. You must ask why the document is redacted and ask for a proper copy that represents what was actually sent to you.

[sev67]

To Ford in response to post #40. I have the A4 envelope dated 14 Oct with 55p postage paid so regardless of the weight this is second class. Clearly they had no intention of it arriving with me by Saturday 15 Oct. It arrived on Monday 17. I fear the judge will see that as de minimus and decide not to strike out simply because they used 2nd class 'by accident' as no doubt they will argue. Just another sneaky trick to distract the defendant and eat into their/my time me thinks.

 

To DB. I did call their sols today. I left a message asking three questions about each piece of info supplied (which included asking why the DN was blacked out). I also asked for an extension to 28 days under cpr15.5, but they didn't call me back and by then andyorch response had led me to decide to submit my defence regardless.

 

How do I ask why it is blacked out then, shall I call again on Monday to ask for an answer to the questions left today.

Edited October 28, 2011 by sev67

[Guest]

ok

as you say maybe a long shot, but you could still try for the fact that they didn't send the docs by the 15th, and argue in which case it should be struck out? was that the original order?

otherwise it will continue as is, and you can mention the fact of the late disclosure during the proceedings.

[sev67]

May I ask for second opinion as to whether I should argue it should be struck out now then...based on Ford's comments?

[Guest]

sev

please type up the order

[citizenB]

You could possibly use CPR part 18 to enquire as to the reason they have blacked out the dates on the DN. I agree, with DB.. that is bizarre !!

[Guest]

sev

was that you that has deleted/blacked out the dates, as well as the other personal info?

[sev67]

Here's the order.

 

The j orders that;

Unless the claimant do comply with the defendants request under cpr31.14 by 15 10 11 the claim shall stand as struck out without further order.

 

In the event that the above is complied with the Defendant shall file and serve a defence by 29 10 11.

 

Attached is;

Application Notice

1 Name BL

2 Solicitor

3 What order are you asking the court to make and why?

We BL on behalf of claimant intent to apply for an order that:

The order dated 31 08 11 be varied as follows;

1) Unless by 4pm on 15 10 11 the claimant complies with a request made by defendant on 04 06 11 purusant to cpr31.14 by the provision to the defendant of documents mentioned in the Particulars of Claim, namely (1) the agreement, (2) the assignement and (3) the default notice, the claim shall stand struck out without further order of the court.

2) In the event that the claimant shall comply with para1 of this order, the defendant shall file and serve a defence by 4pm on 29 10 11.

 

because

1. The order was made without a hearing and under the courts case management powers contained in the CP rules. The claimant is entitled to apply to the court to vary the order under part 23 rule 10.

2. If the order of DPJ dated 31 08 11 is not varied to allow the claimaint further time to file and serve the documentation pursuant to cpr31.14, the claimant submits that the overriding objective will not have been upheld since the claimant will not have had a chance to prove its claim.

 

Then further explanation is provided at point 10, which is more of a witness statement stating when the claim was, what happended next and repeating point 2 above in conclusion.

[sev67]

I have not touched the DN at all - that is exactly as it has been sent to me by the sols. The blackouts on the agreement and notice of assignment are done by me.

[Guest]

good stuff sev

wait for the 'second opinion(s)'