Claim Form DLC/Hillies old-MBNA credit card *** Settled by Tomlin Order***

[Alloyz1]

The application should be straight forward (i hope)

 

Should I post up the WS which I intend to submit as supporting the application?

[AndyOrch]

I havent the time at the moment Alloyz....... if as you state..... how sure you are .....then it makes no odds my thoughts....simply add the latest developments as advise.

[Alloyz1]

ok

 

Do I still need to put some narrative in section 10, and also tick the WS box when attaching the WS?

 

Think the answer is yes, but want to make sure. Was thinking about this Andy:-

 

 

I am making this application promptly; and within 7 days of service of the order. Service being 22nd July.

 

I have not been served with either the application or the supporting evidence the claimant refers to, contrary to CPR 23.9.

 

I received the claimants Particulars of Claim; and submitted a defense putting the claimant to strict proof to show they have a legal right by way of the Consumer Credit Agreement and Terms and Conditions applicable as shown in exhibit [DJC Defense 1] para 3(a) and show service of a Valid Default Notice as shown in exhibit [DJC Defense 1] para 3(b) . The Claimant has not provided such proof. The documents I have received; and disclosed to the court within their Application to Lift the Stay and Strike out my Defense, are not pursuant to the Consumer Credit Act 1974 or the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)as detailed below:

 

Default Notice:

By s88 (2) of the Consumer Credit Act, as amended by s14 (1) of the Consumer Credit Act 2006 as from 1 October 2006, a valid Default Notice must have a specified remedy of breach date within the document. The specified date must ‘not be less than 14 days’ “after the date of service” of the default notice. The 14 day period was also required by paragraph 3© of Schedule 2 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

 

The date given in exhibit [MBNA1] by which the default could be remedied was ‘before 26th Feb 2010’ meaning at the latest 25th Feb 2010, which is allowing only 13 days and less than the 14 days required by s88 (2).

 

Agreement & Terms and Conditions:

A valid credit Agreement must contain certain terms within the signature document The Consumer Credit Act 1974 s.60(1)(2).

 

These core terms are the credit limit, repayment terms and the rate of interest The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553 (Column 2 schedule 6). These are ‘Prescribed Terms’.

 

Prescribed terms must be within the signature document The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553 (6 Signing of Agreement).

 

The Agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor The Consumer Credit Act 1974 s.61(1)(a).

 

The court shall not make an enforcement order under s65(1) if s61(1)(a) (signing of Agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the prescribed terms of the Agreement was signed by the debtor or hirer (whether or not in the prescribed manner) The Consumer Credit Act 1974 s127(3)

 

It is submitted the strict proof request within my defence has not been satisfied; and subsequently my Witness Statement attached, will show the Claimant cannot prove their legal right to the claim. My Witness Statement goes into fact and details with regards the non-compliance with multiple regulations of the documents provided which is fatal to the Claimants case.

 

My Witness Statement is not based on arguable matters, unwinnable on merit, which were misconceived or, on facts pleaded bound to fail; it is based on points of law and fact. Given this, my defence has real prospects of success in defending the claim; and the Claimant has been; and will be, unable to prove their legal right to the relief claimed.

 

May I respectfully request that the order be set aside.

 

 

Thanks for your time Andy

[AndyOrch]

Just a short narrative in section 10 and the CPR pursuant to your request...the above is fine and succinct Alloyz.

 

Andy

[Alloyz1]

Great thanks again

[AndyOrch]

Dont forget to include your Draft Order for set a side and strike out with the relevant CPR PDs...I really have to be else where now:sad:

[Alloyz1]

When you say 'draft order' do you mean the actual n244 form?

 

God i sound dumb! Apologies for the basic questions....

 

under section 3 on the N244 (What order are you asking the court to make and why, I have requested "an order to set aside under CPR 23.9 as my defence does have reasonable grounds to defend the claim; and to strike out the claimants claim under CPR 3.4(2)(a) as it discloses no reasonable grounds for bringing the claim"

 

A

[AndyOrch]

Question 4 on the N244 Alloyz.....

[Alloyz1]

Question 4 on the N244 Alloyz.....

 

I had best do some research.... Today....

 

No idea what that is!! Ok thanks Andy, I'm off to find out what that looks like!!

 

A

[Alloyz1]

Now it makes sense why you previously said 'post up the draft order and I'll look over it'.... And I thought that was just the n244!!!

 

Apologies Andy...

 

Thanks again

 

A

Edited July 24, 2013 by Alloyz1

[Alloyz1]

Hi

 

Struggling!!

 

Claim No: XXX

Date: XXXXX

In the Northampton (CCBC) County Court

XXX

CLAIMANT

-AND-

XXX

DEFENDANT

DRAFT ORDER FOR DIRECTIONS

1. The order, made on XXX 2013 by Deputy District Judge XXX sitting at XXX be set aside under CPR 23.9.

2 The defendants defence be struck out under CPR3.4(2)(a).

Edited July 24, 2013 by Alloyz1

[BT2505]

Hi

 

Struggling!!

 

Claim No: XXX

Date: XXXXX

In the Northampton (CCBC) County Court

XXX

CLAIMANT

-AND-

XXX

DEFENDANT

DRAFT ORDER FOR DIRECTIONS

1. The order, made on XXX 2013 by Deputy District Judge XXX sitting at XXX be set aside.

2 The defendants defence be struck out.

 

Keep the faith Alloyz someone will be along to help.

[AndyOrch]

Originally Posted by andyorch;

The Draft needs to be properly formatted correctly...... format as follows:-

 

 

 

Edit to suit

 

 

#### START OF ORDER ####

 

In the ......... county court

Claim No. ...

 

Before

 

District Judge ………

 

 

Dated ……… 20…

 

 

Claimant A

 

and

 

Defendant B

 

 

 

Draft/ORDER

 

 

UPON reading the Claimant’s application notice dated [ ] and the witness statements filed by the parties

 

AND UPON hearing the Claimant and Counsel for the Defendant

 

IT IS ORDERED THAT:

 

1. The Claimant be granted summary judgment on the whole of the claim and the counter claim by the Defendant struck out.

2. The Defendant do pay to the Claimant forthwith the sum of £[ ] in respect of the claim.

3. The Defendant do pay the Claimant’s costs of the claim, in the sum of £[ ] within 14 days.

 

#### END OF ORDER ####

 

Fill in the gaps where ..... or [ ] is present.

 

 

 

 

 

amend the order to suit.Insert relevant CPR PDs that you make your order pursuant to.

 

Regards

 

Andy

[Alloyz1]

Few questions when you get time please:

 

How do I know who the DJ is going to be, or does this refer to the judge who granted the order I wish to have set a side? Yes

 

Does this look okay? My bits in RED

 

In the ......... county court

Claim No. ...

 

Before

 

District Judge ………???? See above

 

 

Dated ………

 

 

Claimant A ME? No Alloyz you are the defendant

and

 

Defendant B Them?

 

 

 

Draft/ORDER

 

 

UPON reading the Claimant’s application notice which was dated 11 June 2013 which I recieved and accompanied the judgement; and reading the subsequent judgement entered on 17 July 2013

AND UPON hearing the Claimant and Counsel for the Defendant Do I include this as the application came with the judgement??[/color] I did state edit to suit

 

IT IS ORDERED THAT:

 

1. The order, made on 17th July 2013 by Deputy District Judge XXX sitting at XXX be set aside under CPR 23.9

2. The defendants Claimanst statement of case defence be struck out under CPR3.4(2)(a).

 

#### END OF ORDER ####

 

Thanks Andy

 

A

Edited July 24, 2013 by Alloyz1

[AndyOrch]

Bump

[Alloyz1]

Second Go:

 

In the Northampton (CCBC) County Court

 

Claim No: XXX

 

Before

 

District Judge XXX (the one who made the Judgement)

 

 

Dated XXX (Date the Judgement was granted))

 

 

XXX (Them)

Claimant

 

and

 

XXX

Defendant (Me)

 

 

 

Draft/ORDER

 

 

UPON reading the Claimant’s application notice which was dated 11 June 2013 and which was first recieved by the defendant with the judgement; and reading the subsequent judgement entered on 17 July 2013 without an hearing.

 

IT IS ORDERED THAT:

 

1. The order, made on 17th July 2013 by Deputy District Judge XXX sitting at XXX be set aside under CPR 23.9.

2. The Claimanst statement of case be struck out under CPR3.4(2)(a).

3. Costs in this application

 

#### END OF ORDER ####

Edited July 24, 2013 by Andyorch
amended

[AndyOrch]

Bump ........see further amendments:thumb:

[Alloyz1]

Bl**dy brilliant Andy

 

Pointless going on about my appreciation... I think you know mate.

 

Cheers

 

A

[Guest]

alloyz

re no. 2 - shouldn't you be asking for the claimants (them) claim to be struck out, not your (the defendant) defence? or have i misread?

[Alloyz1]

Hi Ford

 

Good call.....

 

A

[AndyOrch]

alloyz

re no. 2 - shouldn't you be asking for the claimants (them) claim to be struck out, not your (the defendant) defence? or have i misread?

 

I did amend it in post #189 in blue.

[Alloyz1]

Is it best to request a hearing or to allow the DJ to use their discretion?

[Alloyz1]

I also amended my draft as per post 189

 

But thanks for the once over Ford

[AndyOrch]

Is it best to request a hearing or to allow the DJ to use their discretion?

 

It will require an hearing unless the Claimant is not objectionable to the application

[Alloyz1]

Ok

 

I will leave it to the DJ but will expect a hearing date!

 

A