Robbersway/Hagarty Claimform - Secure Plus Loan debt - Faulty default notice?

[vint1954]

Hi DD,

 

It sounds like the court are saying that the original order stands. The claimant has to supply documents by xxx date. Was there an or else clause attached to that order.

 

The judge that heard their complaint or clarification request is just saying that if they want further direction, then they need to apply in the normal way.

 

If you want an order to supply the agreement or else case is struch out, then is looks like they want another N244 from you.

 

If there was no sanction to your original N244, I think the case will just remain stayed until the comply.

 

Vint

[AndyOrch]

Hi DD,

 

It sounds like the court are saying that the original order stands. The claimant has to supply documents by xxx date. Was there an or else clause attached to that order.

 

The judge that heard their complaint or clarification request is just saying that if they want further direction, then they need to apply in the normal way.

 

If you want an order to supply the agreement or else case is struch out, then is looks like they want another N244 from you.

 

If there was no sanction to your original N244, I think the case will just remain stayed until the comply.

 

Vint

 

Exactly Vint.

 

Andy

[AndyOrch]

However the order still stands for the claimant to pay the costs to the claimant for the application ( complied or not )

as such the OP must approach the Claimant (informally for those costs) failure to comply further would be escalated by means of enforcement.

 

Regards

 

Andy

[DD maker]

Thanks all for your input.

 

citizenB,

I am not quite sure of the question you are asking?

 

You made an application to the court for something - and are now asking the claimant to pay the cost of that application.

 

Can you explain a little more. I understood that costs are awarded by the court ?

 

Perhaps I have misunderstood.

 

Not misunderstood - a quick summary,

 

I applied via an N244 for disclosure of docs after the claimants refusal of CPR31.14 and Part 18 requests.

Court ordered disclosure of all the docs and for them to pay my N244 application fee (£45).

Claimant failed to supply all the docs (only the NOA supplied) and has not paid me the court fee.

Court advised that the claimant had queried the N244 court order and they need to apply using the correct application (N244 I presume - but out of time now).

Court (when I called them) said the claim is now stayed.

 

vint1954,

If you want an order to supply the agreement or else case is struch out, then is looks like they want another N244 from you.

 

If there was no sanction to your original N244, I think the case will just remain stayed until the comply.

Vint

 

Yes, I agree. My original N244 requested an unless order but unfortunately the court did not include the unless provision.

 

andyorch,

as such the OP must approach the Claimant (informally for those costs) failure to comply further would be escalated by means of enforcement.

 

Regards

 

Andy

 

So do I write a letter to Hegarty (or Robinson Way? or IND Ltd?), the address for correspondence on the claim form is Hegarty.

Would I be best to word it as a letter before action quoting the claim number and enclose a copy of the order for their reference with a timescale of 14 days for payment of the £45 before further costs will be added by an additional N244 application on my part for fees to be paid.

 

 

 

One other question - is it best to leave the claim as 'stayed' or go for the jugular and apply for an unless order with strike out?

 

 

Thanks for any guidance.

[AndyOrch]

There are two options to deal with this matter either apply for a costs certificate if the informal approach fails or make further application to strike out with inclusion of the previous costs and current costs,

if successful then the Order will make provision for all costs outstanding.

 

Andy

[Guest]

..........So do I write a letter to Hegarty (or Robinson Way? or IND Ltd?), the address for correspondence on the claim form is Hegarty.

Would I be best to word it as a letter before action quoting the claim number and enclose a copy of the order for their reference with a timescale of 14 days for payment of the £45 before further costs will be added by an additional N244 application on my part for fees to be paid.

 

...........

 

Thanks for any guidance.

 

as andyorrch suggests. to begin with, would send an 'informal' letter, not an lba as such, to Hegarty requesting payment as ordered. they will have a copy of the order.

Edited April 24, 2012 by Ford

[DD maker]

Thank you all for your posts

 

 

I will send a letter to Hegarty tomorrow requesting the cost as per the court order and give them 7 days to pay or give an explanation as to why they will not.

 

I'll keep you updated with any further developments.

 

Again many thanks.

[Guest]

beware that they don't try to 'offset' it. and, if they don't pay then consider the further action as previously suggested including further costs.

[DD maker]

beware that they don't try to 'offset' it. and, if they don't pay then consider the further action as previously suggested including further costs.

 

Quick update,

 

IND have responded to my letter asking for payment of the £45 N244 fee - a credit of £45 has been applied to my account:mad2:.

 

They also want me to be aware that they have made an application to the court for the order to be withdrawn (I guess the order for disclosure of documents).

 

I called the court and they said the claim was still stayed - no claimant application on their system yet.

 

I am going to wait until next Thursday / Friday and re-check with the court to see if any application by the claimant has been received.

 

Whether an application has been made or not, I will still respond to Hegarty stating that the order was to pay me the N244 fee and NOT credit it to an account that is currently within the court system.

Does my next letter need to be in the style of an LBA (as the court ordered the payment I am guessing not) or just state their costs may increase when I make another N244 application for payment of the fees incurred by myself?

 

 

Many thanks for any advice.

[Guest]

'they' seem to have a habit of offsetting in these circs. hence the warning.

as you say, don't accept their 'offset', request reverse and demand payment direct, by cheque, as ordered. the costs order is independent. looking back, you have a good court order there includes all docs proof including compliance with pre action. seems that they can't fully comply hence their poss objection to it.

Edited May 6, 2012 by Ford

[DD maker]

Well a bit of an update...

 

Hegarty have received my letter stating I require my N244 application fee direct and not offset against the account that is subject to this claim - no responce (what a surprise). I'll keep this issue on the back burner for now - see what pans out.

 

Today I received a court order prompted by an application made by Hegarty. Their application requested the order I had from the court for them to disclose docs should be withdrawn (in its entirety). They paid the court fee for their application (£45).

 

The court has ordered that the order I had be amended....

 

The words from the first paragraph .... "documents mentioned in the particulars of claim namely" be omitted.

 

Claimant to comply with order extended by 4 weeks, my defence 4 weeks after that.

 

 

So now after Hegarty have paid a further £45 to try and obstruct the clear resolution and fair process of the case the actual order they have to comply with is...

 

The claimant shall serve on the Defendant copies of the agreement, the assignment, notice of assignment, and [docs showing compliance with Pre Action Conduct - already sent to me].

 

 

:lol::lol:

 

 

I now wait to see what their next steps are - possibly apply for a set aside or variation of their own order or just let the claim be (remain) stayed.

 

 

 

I couldn't quite believe it when I opened the letter and took in what had actually been ordered, especially when reading what they wanted the order to be. Maybe the judges at Northampton are getting tired of these opportunistic claims.

[Guest]

from what you say it looks like claimant has disputed (as before) that they 'mentioned' docs therefore please withdraw order, and j has said well maybe maybe not mentioned but no bother will just remove 'docs mentioned..' and still require production of docs. nice one J Edited June 1, 2012 by Ford

[DD maker]

Hi All,

 

Well about time for an update.

 

IND have again sent me their LBA and NOA after the last court order. Also sent a reconstructed agreement (posted below).

 

No copy of the assignment as ordered by the court though.

 

I have to file my defence next week, can anyone advise if I can just re-enter my holding defence stating that the claimant has not complied (no copy of assignment received).

 

I note that the reconstructed agreement (IND claim to have filed this with the court) just doesn't add up - monthly payments x term are less than the total payable.

 

 

Any pointers to include (or not to include yet - do I flag up the issue of incorrect figures on the agreement now or hold that back for later?) in my defence please. I realise the recon is only sufficient to comply with a CCA request and I should insist on the original in court (pre 2007 agreement - statute case links would be appreciated please).

 

 

[Guest]

it seems that they are relying on the copy lba, NoA they sent earlier, and now the 'recon', in satisfaction of the order. ultimately up to the j to decide whether complied with the order or not.

as you say, a recon would satisfy a cca request provided it is accurate (kotecha v phoenix CA case), but now there is the order. have you prev done a cca request on this?

is a default notice in issue?

then there is s127 (3) (4) etc cc act as mentioned re pre 07. see the Wilson case on this for eg. 'Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery.'

whilst they are put to proof and must satisfy, if applicable, s77, any default notice, and s127, it would be on balance unless shown/expressly stated otherwise, and so you may need to negate if poss their evidence in court if it gets that far.

perhaps give andyorch a pm nudge for input on thread.

Edited July 20, 2012 by Ford

[DD maker]

Hi Ford, thanks for your input.

 

I haven't done a CCA request and the default notice is short by a day or two (possibly incorrect in values by one month's payment also).

 

I'll read up more on the Wilson case to refresh my memory. Do I need to quote case law in my defence or do I leave that for a later stage?

 

Many thanks for everyone's input.

[citizenB]

I will ask andyorch to look in on you.

[Guest]

hi dd

s127 requires there to have been a signed doc that contains all of the prescribed terms, without which = no enforcement. they would have to show that there is/was such a doc, and ordinarily this should require production of an actual copy of such, but never know for sure what a j will accept as evidence of this!

a compliant dn should also be required before ct can enforce, see Woodchester, Harrison, and Brandon cases for eg. though, an 'incorrect' amount on a dn could be regarded as de minimus (woodchester case) depending on how much the discrepancy.

there is also cpr which states that where there is a claim based on a written agreement a copy of the original 'should' be available at court. but, what weight does that have?

an accurate recon is required re a cca request, failure of which means that there can be no ct enforcement until so (kotecha case).

not sure what standard is required re the order to produce a copy of agreement, ie recon or actual? it seems that they have submitted what they believe to be in satisfaction of the order. depends on J. as you say, maybe would need to address that. but, failing that there is s127 re agreement.

generally no requirement to cite cases in a defence, that can come later re written argument, but can do if required/think should do/would help in the circumstances.

see what andy says. thanks citB for the nudge.

ps edit, looking back, i see what you mean, order requests copy of assignment as well as nofa but they have only supplied copy notice of assignment?

Edited July 22, 2012 by Ford

[Mike_hawk]

DD

 

What was the monthly term you actually paid, and how many payments did you make?

 

Have hegs served/relied on a statement of account [yet] ?

 

Also....... is the case for the balance of £4203.86 or £4613.04?

Edited July 21, 2012 by Mike_hawk

[DD maker]

Hi Mike,

 

Monthly term would be correct as in the reconstructed agreement - but the monthy term multiplied by the number of monthsdoes not equal the total payable!!

 

Hegs haven't provided a statement of account - case is for less than either amount (recon just doesn't add up - like you say is the agreement for £4200 or £4600).

 

 

Just about to post up my 2nd 'Holding' defence - basically informingthe court of the Claimants lack of respect for the court orders.

[DD maker]

Thanks Ford and citizenB also.

[Mike_hawk]

DD

 

How much of the principal [3k] sum have you repaid?

 

The noa is a wrongun, pre action protocols also failed.....the reconstructed agreement is equally failing

 

You should include all within your amended defence, the matter of discharging the bulk of the principal sum is a second string which should be investigated further.

[DD maker]

OK, my holding defence to the court (bit long maybe, but I want the court to see the difficulty that IND are causing),

 

Dear Sir/Madam,

 

I would like to bring to the attention of the court the Claimants disregard of the court order made by ******** dated ** March 2012 (stamped by the court on ** March) [the order], and ******** dated ** May 2012 (stamped by the court on ** May) [the amended order] for disclosure of documents that would enable the Defendant to prepare a proper defence and the determination of the claim.

 

 

The order required the Claimant to,

a, Pay the Defendant his court fee for issuing the application in the sum of £45.00.

 

The amended order required the Claimant to, by the ** June, provide copies of,

b, The agreement.

c, The assignment.

d, Notice of assignment.

e, Documentation showing compliance by your client with Section III and IV and Annnex B of the PD Pre-Action Conduct.

 

 

 

1. d+e, In a letter dated ** June 2012, IND Ltd (agent of the Claimant) stated their ‘letter before action dated ** November 2011 included ‘the notice of assignment of the debt (see attached). The Claimant has therefore complied with Section III and IV and Annnex B of the PD Pre-Action Protocol’ and advised a copy of ‘the agreement’ had been requested from the Claimant.

 

2. b, In a letter dated ** June 2012 (after the amended order deadline), IND Ltd sent a copy of ‘the reconstructed agreement’ in relationship to this claim and confirmed a copy had been filed with the court.

 

 

 

To date the Claimant has failed to comply with the order or amended order.

 

 

1. d+e, The Claimants letter dated ** June 2012 referenced an attached document dated ** November 2011. This document was not attached – the only document attached was dated ** January 2012 [copy attached – Marked A]

 

2. b, While a reconstructed agreement may satisfy a lawful request under the Consumer Credit Act 1974, I am of the respectful opinion that the copy of the ‘reconstructed agreement’ provided by the Claimant is not sufficient to comply with the amended order for a copy of ‘the’ agreement. The Claimant is put on strict proof that the reconstructed agreement is correct. I respectfully request that the [original] agreement be available when/if this case proceeds to court.

 

 

• a, To date the Claimant has not paid the Defendant the court fee incurred by the Defendant of £45.00 as instructed in the order.

 

• c, To date the Claimant has not provided ‘The assignment’ as ordered in the amended order.

 

 

 

 

The Defendant is embarrassed and respectfully requests a stay in proceedings until such time as the Claimant complies with the court orders or until the Court orders its compliance.

The Defendant will then be in a position to file a fully particularised Defence / Counterclaim within 28 days of the Claimants compliance and the Defendant seeks the Court’s permission to amend his statement of case accordingly.

 

 

 

A copy of this letter has been posted to the Claimant’s address for sending documents as shown on the claim form.

 

 

 

All opinions appreciated.

[DD maker]

Hi Mike,

 

Total payed back is just under £2300

[Mike_hawk]

DD

 

Try to bear in mind that IND are not the claimant and have no locus standi. If the claimant [RW] has disclosed nothing then they persist in non disclosure. Every time you refer to IND as the claimant you expose yourself to the lie.

 

You may however, depending on values, wish to allow them relief to the reconstitued agreement

[Mike_hawk]

Should note, you can add some weight to your defence by referring to IND disclosure as hearsay.

 

ie;

 

1. d+e, In a letter dated ** June 2012, IND Ltd, in the provision of now assumed hearsay evidence, stated their ‘letter before action dated ** November 2011 included ‘the notice of assignment' (enclosed doc ref ****). The Claimants 'agent' avers its compliance with Section III and IV and Annnex B of the PD 'Pre-Action Protocol’ and further averred a copy of ‘the agreement’ had been requested from the Claimant. The claimant having relied upon 3rd party disclosure failed to claim relief to CPR 33.2 in circumventing the natural order of the defendants right to test pursuant to CPR 33.

Edited July 22, 2012 by Mike_hawk