Off topic posts from "Getting them to Reveal their Vitals"

[surfaceagentx20]

PV,

A Defendant faced with a Claimant who declines to deal with his CPR 31.14 obligations promptly (ie within 7 days of the request) may file an application with the court in Form N244 for an appropriate order.

 

The following text is fom a post I made in wakeywakey's thread entitled: 'Marlins/Arrow Global have no CCA-Now what?' and deals with the completion of the N244 for an appropriate order folowing a Claimant's failure to comply with a CPR 31.14 request.

 

In box [3] of the N244 write:

 

'An order that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice and [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and the documents are required owing to [here add any special feature or requirement of the case] and to enable the proper preparation of a Defence.'

 

In Box 4 write: 'Yes'

In Box 5 write: 'Without a hearing'

Ignore Box 6

In Box 7 write: 'None'

In Box 8 write: 'District Judge'

In Box 9 write: 'Claimant'

In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write:

 

'On (date), following service of the Claim Form in this case, I wrote to the Claimant requesting inspection of documents mentioned in the Particulars of Claim pursuant to CPR 31.14. A copy of my letter of request is attached to this application notice marked 'A'.

 

The following is the text taken from my wakeywakey post but hopefully will assist with a gist of the sort of thing to say:

 

[The Claimant replied by letter dated (date) rejecting my request on the ground it had no obligation to comply. A copy of this reply is attached to this application notice marked 'B'.

 

The agreement relied upon by the Claimant is now very old. The documents sought by my request are essential for the proper preparation of my defence and the determination of the claim and CPR 31.14 afford me a right to inspect those documents.']

 

Sign the statement, attach the copies and complete the remainder of the N244 in the usual way applicable to your case.

 

On a separate piece of paper to be attached to your application notice, write this:

 

Claim No:

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request for example, [1] the agreement [2] the default notice and [3] the assignment,]

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

 

The fee payable to the court on filing this application is presently £75.00.

 

Hope this helps.

 

x20

[surfaceagentx20]

Ruud,

42 Man made an appropriate amendment to the letter. In your case the CPR 31.14 letter will be addressed to the Claimant's solicitor Wallers and hence the disclosure obligations are obligations owed not by Wallers but by thier client.

 

x20

[surfaceagentx20]

StayingCalm,

 

Q1

I have amended the text of box 3 of the N244 in order to make it clear that an extension of time for serivce of the Defnece is sought. The text in box 3 would read:

 

'An order extending time for service of the Defence and directing that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice and [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and the documents are required owing to the age of the case and to enable the proper preparation of a Defence.'

 

Q2

I would expect it to be transfered to your local court.

 

Q3

I estimated costs at £130.00 to include the cour fee of £75.00. you are not obliged to stick with £130.00 and may suggest a differnet figure.

 

Q4

The Claimant whose claim is struck out for non-compliance may apply to the court for relief from the sanction. It will be a pre-requisite of any application that there is compliance with the order and the claimant will have to satsify the court that it should be allowed back into the case on a consideration of the principles set out under CPR 3.9.

 

Q5

Any baggage or black marks connected to the account, including such things linked to the collection of the account, pass with it and would be avialble for you to use in Defene. Thus if the claim was struck out and the Claimant passed the account on to another collector who brought proceedings, you could meet any claim brought by that collector by saying in your Defence that proceedings on the account had been brought and struck out by order of the court.

 

x20

[surfaceagentx20]

micko,

You will have to help me to help you, but let's see what I can understand from what you've already said.

 

Loan Company 'A' began what appears to be two mortgage repossession proceedings against you, represented by a different law firm in each case in relation to two agreements between you and A in January 2008.

 

In one of the two cases, the relevant law firm attached the agreement relied upon in accordance with CPR 16 PD 7.3. In the other case, the agreement relied upon was not attached. The agreement which was not attached did not show up in either of two SARs either.

 

The Practice Direction governing the contents of Particulars of Claim in mortgage repossession claims is set out at CPR PD 55 para 2.5.

 

You say you got hold of the agreement under section 15(2). I presume that to mean section 15(2) Data Protection Act 1998? You say confidently that the agreement breaches section 18. I presume that to be section 18 Consumer Credit Act 1974. It is always helpful to spell out the Act along with the section. I can do a bit of thinking and have a try at figuring out what you might be saying. Other CAGgers might throw their hands up in the air.

 

As for what you can do, it depends on what happened to the litigation. I gather you entered into another agreement with an equally awful creditor 'B', got the money off B and paid off A. If that is right the mortgage repossession proceedings will be over and A will have run off with the money. You paid off A before you'd got a copy of the relevant agreement.

 

If the agreement was improperly executed, paying A off may be tantamount to returning as unwanted, the voluntary disposition or gift made to you by A and as suggested would arise in Wilson v First County Trust Ltd [2001].

 

x20

[surfaceagentx20]

micko,

I am at a loss to understand what you would expect to gain by bringing these proceedings. In your draft PoC you say at para 3 that on 23 January 2008 the proceedings were adjourned generally with liberty to restore and that if no application to restore was made then on 4 February 2009 the proceedings were to stand struck out.

 

If I read you right, what then happened was that you remortgaged with Redstone of all people and applied the funds received to pay off GE Money. Content with the money and the mortgage thereby redeemed, GE Money have not prosecuted the possession claim any further and have no remaining interest in your property on which to base a right to possession of it. The case will stand struck out ccome February next year.

 

Your proposed action is against 'Simply Law' (is that a real name for the law firm?) who you say represented GE Money in the possession proceedings. Your claim against them is based upon a faiure to comply with a SAR and that because of this failure they have caused you to suffer damage.

 

No better particulars of the way in which the failure caused damage and the nature of the damage are provided and there is consequence a not-insignificant gap in the trail of facts and matters contained in the Particulars of Claim. Instead and perhaps as some means of filling this gap, you launch into a claim that 'Simply Law contrived with GE Money to ignore .. CPR PD 55 para 2.5 .. to stop myself and the court from having access to an agreement that was unenforceable ..'

 

This allegation is an allegation that Simply Law and GE Money contrived to pervert the course of justice, will be taken very seriously by the court and unless you have unequivocal evidence of pre-planned and intentional wrongdoing of the kind alleged (which I doubt), Simply Law will wipe the floor with you.

 

Further, to suggest in Particulars of Claim that the court is so weak as to be incapable of regulating what documentary evidence may be used in the case is preposterous. Had you applied to the court for an order directing the disclosure of the agreement in question you would have obtained an order for disclosure of it. If it is to be suggested that the failure to comply with CPR PD 55 is what lies behind your suffering damage, I'm sorry to say your claim will fall on deaf ears.

 

All a court is likely to do is make a direction that Simply Law comply with your SAR and all the court will require is evidence thast the SAR was made and not answered within the statutory framework. There is no need for any other allegations unless you are seeking some other relief from Simply Law to which you have a legal entitlement. In a case between you and Simply Law the court will have no power to deal with questions concerning whether your agreement with Redstone may be rescinded. Likewise whether you should be able to reclaim monies from GE Money.

 

As for your claim to be entitled to reclaim the monies from GE Money, you appear to advance a right to reclaim on the ground that it was improperly executed. The consequence of entry into an improperly executed agreement is that the creditor who wishes to enforce the agreement may only do so where he has an order of the court permitting him to do so (See section 65 Consumer Credit Act 1974). I am unaware of any other consequences.

 

GE Money brought proceedings to enforce the agreement. By all accounts you did not raise in those proceedings the fact that the agreement was improperly executed. Instead you did what GE Money wanted you to do. You voluntarily repaid them so the mortgage is now redeemed. GE money no longer require an order of the court.

 

What you appear to be saying in a nutshell is:

 

[1] GE Money lent me money.

[2] The agreement was improperly executed.

[3] Before I found out the agreement was improperly executed I repaid the loan in full.

 

[4] GE Money should be made to

[a] re-open the agreement making sure it is improperly executed,

give me the money again,

[c] apply to the court for permission to enforce the improperly executed agreement

 

[5] on hearing the application for permission the court should

[a] refuse GE money permission to enforce

allow me to keep the money as if it was a gift.

 

That ain't gonna work.

 

x20