Court Action - What Now?

[mcflipflop]

Hi,

Well after a few years of scraping by I'm afraid things have started taking a turn for the worse again. After a spell in hospital my wife has fallen behind with payments on her store card and they've issued court papers. I was very grateful to andy for his help with my own case and used that to help my wife with hers, but I'm now a bit stuck. This is the story so far: Claim form from Northampton was received, dated 6th Dec. We completed the AOS online and sent off the CPR31.14 and CCA letters. Filed a holding defence and then waited to see what happened. We received notification from the court that they had sent a copy of the defence to the claimants and that they had 28 days to contact the court. That was dated 8th Jan. We then received a letter from Santander dated 21st Jan stating that they no longer hold a copy of the original credit agreement but enclosing a copy of the terms and conditions and confirming the balance and outstanding arrears. However, we then got a letter dated 23rd Jan enclosing a copy of the credit agreement which they obviously had found after all. It looks like its my wifes signature and I'll post up a copy as soon as I can - scanner seems to be playing up. Still haven't had a copy of the DN. Not really sure what our next step should be now as we were hoping that they wouldn't have a copy of the credit agreement. My wife's been through a lot recently and could definitely do without a court appearance as well. Should we contact Santander and make an offer of a monthly amount? We probably couldn't afford a lot, but not sure we'd be successful if it went to court. Any thoughts would be appreciated, just to put my mind at rest. Thanks guys.

[AndyOrch]

HI mc

 

Every claim is unique, so even though you have applied the process to your wife's claim...every defence and every particular cant be treated the same.

 

If you could post up a copy of their particulars (less any identifiable data) and rounded up amount claimed ...also a copy of the agreement and the defence you submitted.

 

I hope you wife is now on the mend.

 

Regards

 

Andy

[mcflipflop]

Hi Andy,

thanks very much for your comments and yes, my wife is doing well now thanks.

 

I've attached copies of the agreement and Particulars, the defence I sent was:

 

1. I of

am the defendant in this action and make the following statement

as my defence to the claim made by Santander Cards UK Limited.

 

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 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

 

a) A copy of the purported credit 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.

 

b) A copy of any evidence of both the scope and nature of any

default, and proof of any amount outstanding on the alleged

account, has not been served attached to the claim form.

 

5. Notwithstanding matters pleaded, it is denied that the Claimant

has established a cause of action or that the claimant has a valid

claim against the defendant.

Consequently, it is proving difficult to plead to the particulars

as matters stand.

 

6. On the 24th December 2012 I wrote to Drydensfairfax Solicitors

by first class recorded delivery requesting the disclosure of

information pursuant to the CPR 31.14, which is vital to this

case.

 

7. No reply has been received.

 

8. Further to the case, on 5th January 2013 I sent a request to

Drydensfairfax and a separate request to Santander Cards UK

Limited requesting a copy of the Credit Agreement pursuant to

section 78(1) Consumer Credit Act 1974 . No reply has been

received from Drydensfairfax or Santander Cards UK Limited.

 

 

9. The courts attention is drawn to the fact that without

disclosure of the requested documentation pursuant to the Rules 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 or correct figures to make such

an agreement enforceable by virtue of s127 Consumer Credit Act

1974

 

 

10. The claimant is therefore put to strict proof that such a

compliant document exists

 

 

11. 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.

 

 

13. 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 requested

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.

 

 

14. The Defendant respectfully requests that the Court stay

(Suspend) the proceedings under Practice Direction 4.6 (1) until

the claimant complies with the defendants CPR31.14 request. The

defendant respectfully requests that the court impose a time scale

of seven (7) days upon the claimant to comply with the defendant's

rightful entitlement to inspect the documents that the claimant's

claim is to rely on, and that should the claimant fail to comply

with the court's order, then the defendant respectfully requests

that upon notification by the defendant to the court of the

claimant's further failure to comply with the Practice Direction

sanctions imposed by the court, that the court makes the motion to

strike out the claimant's claim on the grounds that the claimant

is unable to substantiate the claim.

 

15. The Defendant also makes a respectful request to the court for

the court's consideration, to permit the defendant to submit an

amended defence if the claimant supplies the requested documents

mentioned.

Hope that all sounds about right?

[AndyOrch]

You need to convert those jpegs tp Pdfs mc not got my microscope to hand:wink:

[mcflipflop]

Sorry, that didn't seem to come out very well so I've uploaded again as pdf. Hopefully it's a bit easier to read now!

[mcflipflop]

I've also noticed that she ticked the box for insurance. Is this worth checking to see if they included ppi which we might be able to claim back?

[AndyOrch]

Well the Agreement is of very poor quality and hardly legible ...If I cant read it and a DJ cant read it then it should be thrown out.

[mcflipflop]

So do they need to produce the original in court or just a copy? Do you think I should write and say that this is not legible and I would like a clearer copy? Thanks

[AndyOrch]

So do they need to produce the original in court or just a copy? Do you think I should write and say that this is not legible and I would like a clearer copy? Thanks

 

No you wait until they decide to proceed (AQ) then you drop that bombshell.

[mcflipflop]

Thanks Andy. So is there anything I should be doing in the meantime? I haven't sent off a SAR is that worth doing?

[AndyOrch]

You can do a DSAR but it may not arrive in time of any use for defence.....nothing you can really do apart from prepare a rough defence and wait to see if they proceed.

[mcflipflop]

OK Thanks. Is it worth trying to negotiate a monthly payment plan to stop it going to court or should I just sit tight and let them make the next move?

[Guest]

its already in court? so if want to negotiate now would prob be way of consent order/mediation. but, you've already submitted a defence, so might as well wait see what they do in response to that? if it continues, there will be an opportunity to mediate/negotiate?

a sar when there is litigation is not usually welcomed, and may be refused as such. but, maybe worth a try?

Edited February 2, 2013 by Ford

[mcflipflop]

Thanks Ford, sounds like the concensus is to hang fire for a bit. It was the standing in front of the Judge bit of the court process I was hoping to avoid - been there myself and although not as scary as I thought it was going to be I'd still much prefer not to put my wife through it if at all possible.

[mcflipflop]

Well we've now had the AQ and also a copy of their solicitors AQ in the post and most recently we've had this letter from their solicitors which counters all the points in our original defense. Doesn't look like we've got much left to rely on. Only the DN which they've supplied a template of and the poor quality copy of the original agreement. Any ideas? What is the small claims court mediation service? They've ticked on their AQ that they want to use it. I think we'd be happy to agree a monthly payment of a reasonable amount if they would accept that, is that part of the mediation process or is that something we negotiate separately with the solicitors?[ATTACH=CONFIG]41658[/ATTACH]

[Guest]

have you done your AQ? yes, could agree to mediation and discuss a settlement arrangement there.

double check with andy, perhaps give him a pm shout to look in?

Edited February 15, 2013 by Ford

[mcflipflop]

Thanks Ford. Haven't finished my AQ yet, will probably have a go this weekend as it needs to be back next week. There doesn't seem to be much to fill in though. I wasn't sure if I should put myself down as a witness as my wife is disabled and probably wouldn't want to face this on her own. Is that what a witness is or can she have someone come to represent her anyway?

[wonky100]

I think you could be a Mackenzie friend but then again, I don't think Mackenzie friends are allowed to have a personal interest in the case. Does the fact that the proceedings are against your wife mean you have a personal interest? I don't know. Try googling this to get more info or see if others could explain as I'm not too sure.

[AndyOrch]

Hi mc

 

A witness in a case of legalities is a witness to the facts and connected to the claim....not for representation.

 

Regards

 

Andy

[Old Cogger]

The McKenzie Friends of Family Court Support work tirelessly to support parents and grandparents who are not legally represented or those who wish to represent themselves in court i.e. litigants in person.

 

A litigant in person is entitled to have a layperson – or McKenzie Friend – sit with him or her in court. Normally, a McKenzie Friend cannot address the court and does not represent or act on behalf of litigants, but they can offer moral support, attend court appearances and quietly provide guidance on cases. Additionally, McKenzie Friends can assist in the preparation of paperwork; however this does not include signing court documents on behalf of litigants.

[mcflipflop]

Sorry attachment didn't work - hopefully this time.

[mcflipflop]

Not sure I've got the hang of this posting lark - completely missed the post that should have had the attachement - this is what I posted:

 

Thanks all. So would I need to notify the court in advance of my attendance or is it ok just to turn up?

Also, been going through the AQ. So far I am looking to fill in as follows:

Section A - tick yes I would like to use the free mediation service

Section B - tick yes and put the local court

Section C - tick yes I agree small claims track is most suitable

Section D - no witnesses

Section E - no experts

Section F - enter a couple of dates I'm not available

Section G - 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;

The copy of the credit agreement provided by the claimant is not legible and appears to be incomplete, particularly regarding the terms and conditions which are a requirement under the consumer Credit Act 1974. The claimant has failed to provide a copy of the default notice and the template provided does not comply with the requirements of the consumer Credit Act 1974. 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 also make the case much harder for the court to deal with.

Its is respectfully requested this case be allocated to the small claims 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 these documents must be disclosed before this case can progress any further

Please find the following attached to this allocation questionnaire;

1) Draft order for directions

This allocation questionnaire and its attachments were sent to the claimant on /2013.

Section H - no fee needed

The draft order is one I found in another thread so hope I'm on the right track with this:

Draft Order for Directions

The Claimant shall within 14 days of service of this order file and serve the following:

The original 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,

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

They have supplied a template of the default notice they say was sent. I've been reading up but not really sure if this looks compliant or not. I was thinking that they needed to put a date by which to remedy rather than just state 14 days from receipt (what would happen if it was not received?) They also provided a screen print showing this template letter was sent and mention the arrears figure, but I couldn't see that anywhere on the screenprint or anywhere on the template where it would be inserted?

Here is the template they sent (Now in the earlier post!)

Is there anything else I should be putting in the AQ, or anything I should be aware of - don't want to mess it up, especially as it's not my neck on the line!

Any help much appreciated. Thanks.

[mcflipflop]

Anyone got any thoughts on this? I really need to send it off tomorrow and I'm a bit worried I'm going to make a mess of things:-(

[AndyOrch]

Hi mc

 

Responding to your PM

 

The above AQ response (looks like one of my drafts) is in response to the N150.Your claim is SCT N149?

 

Regards

 

Andy

[mcflipflop]

Hi Andy,

thanks for the reply. Yes, it's a N149 so is this all wrong then?