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HELP! XMAS Claim from CABOT / WRIGHT HASSALL CLAIM for old EGG Card


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you do nothing of the sort. IMHO.

 

they have to produce the required documents

and as you say , they cant.

 

nothing to discuss

 

and even if they do

and even IF you thus lose

 

you can still use the TO then.

 

hold your nerve.

 

 

not sure on you last question

but the SB clock paused the day they issued the claimform

 

dx

please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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Thanks for the advice DX, I'll keep my nerve.

 

Just to clarify,

 

 

I thought a TO avoids court and therefore a CCJ by putting the claim on hold?

 

Surely if I go to court and lose I definitely get a CCJ if not settled within 28 days of judgment

- I might get a payment plan but a TO would be off the table/irrelevant as I already have a judgment?

 

Sorry for my ignorance.

 

cheers,

 

gf

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andy is far more articulate in describing the various scenarios that I am

 

 

I'm sure he will comment later.

 

 

dx

please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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  • 3 weeks later...
andy is far more articulate in describing the various scenarios that I am

 

 

I'm sure he will comment later.

 

 

dx

 

Hi Dx,

Some news, as of today WH have now missed their deadline to provide docs as per the judge's order (at least to me).

The order stipulated that WH provide the court and myself with copies of the following:

- The Loan Agreement

- The Assignment to the Claimant

- Evidence of any payments made to the account by Claimant in the last 6 years (should this say Defendant?)

 

WH have called a few times but have avoided written communication - no emails or letters received, I have not spoken with them.

As this was not an 'unless order' I'm not sure what the court will do, will they Strike Out for non-compliance of the order or should I write to the court requesting a Strike Out?

If so should I complete an N244 or will a letter do?

 

Any views appreciated.

Thanks,

 

GF

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I think you simply wait

 

 

dx

please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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I think you simply wait

 

 

dx

 

Hi Dx,

My last post appears premature:x, I've just received a copy of an N244 WH dated yesterday (the court order deadline) made out to my local court asking for a massive 60 day extension to finalise settlement/get the docs from the OC.:mad2:

 

Despite being dated the 25th it will not be received by my local court until Monday so they are effectively out of time/non-compliant - this is the wording:

 

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

That the court use its Case Management Powers under CPR 3.1(2)(a) and the overriding objective to grant a 60 day extension to the Order of District Judge **** dated ** August 2015 to allow the parties further time in which to formalise full and final settlement of the claim or alternatively to obtain documents from the original vendor of the credit agreement.

 

I hope the court will take a dim view but what worries me is that if I do nothing the court may well assume i am in agreement to the extension and grant it (I had to get WH's agreement to request previous extensions to the stay)

 

I know you have said just wait but I'm worried about leaving this unanswered - I don't want to give them any chance/extra time at all to get any docs together (and it also means I may end up having to attend the CMC in December if this drags on further).

 

I just want to tip the scales towards refusal of their application/strike out but not sure how best to do it - would a letter as LiP pointing out the facts be enough do you think or an N244? - i.e. WH have not complied with the order, no agreement from me for extension, no discussions regarding settlement in over 3 months and failure to provide documentation, settlement extremely unlikely, respectfully request strike out etc.

 

(Whichever method I use I can get it in by fax or by hand first thing Monday morning before the post/their application is processed so it gets considered first.)

 

Thanks,

 

GF

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The court in all honesty would most probably allow this in view of mediation attempts....but in reality they should have stayed the claim before allocation if in reality it's just to gain time to recover.....it's your choice GF if you wish to get on record the fact you object.

 

Andy

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  • 2 months later...
The court in all honesty would most probably allow this in view of mediation attempts....but in reality they should have stayed the claim before allocation if in reality it's just to gain time to recover.....it's your choice GF if you wish to get on record the fact you object.

 

Andy

 

Hi Andy/All,

An update and request for advice re the upcoming CMC:

 

In the end I did object to the extension application,

I've heard nothing for the last 2 mths until

 

 

a recent letter from the court stating that the claimant's/WH's application for extension would be heard (at the previously set CMC in just under 2 weeks time).

 

This is ridiculous to me, if the original extension request for 60 days had been granted it would have expired at the end of November, before the CMC!?:-x

 

It seems the court are being extraordinarily forgiving,

WH completely ignored/failed to comply with the judge's original order to supply docs,

they've not contacted me directly at all for months so their assertion that their application is made in the interests of reaching settlement is rubbish.

 

Overall they seem very relaxed about all this, taking their time and the court appears happy to give them all the time in the world.

 

That being the case

I'm not sure what to expect at the CMC,

it's my local court so WH will have costs for attending

so it seems they must be serious/think they are in a strong position (without docs??) to continue.

 

Clearly I need to attend but

I'm not sure procedurally what to take or if there is anything I should do or issue to the court/ claimant beforehand?

 

 

For example do I need to have all my docs/court pack ready to disclose?

 

 

Do I need to prepare a Case summary or is that just the claimant? etc.

 

Other than the procedural side...

Is there any way I can use the CMC to undermine their case & attempt to strike out the claim once and for all

(surely the judge will take a dim view of their continued lack of documentation and compliance)?

 

Alternatively can they use the CMC to undermine my case?

e'g. could they use it to present some mocked-up docs in an attempt to win over the judge?

 

Having never attended a CMC or an extension hearing I want to be prepared as much as possible so any advice welcome.

 

Thanks,

GF2k

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Case management conferences are important events in the litigious process, as the Court must allocate appropriate resources to the case. The court is also interested to ensure that the proceedings progress towards trial, having regard for the requirements of disclosure, and production and service of evidence by the parties. By engaging with the court system to resolve disputes, parties are expected to comply with case management directions.

 

These conferences are used by courts to:-

 

(1) exercise their broad case management powers;

(2) fix case management directions;

(3) if necessary, review the litigants’ compliance with previous directions, with a view to making directions leading up to the trial.

 

The parties may consent to directions that would otherwise be made at a CMC by using consent orders, however the court retains the power under the Civil Procedure Rules to require the parties to attend court at any time for the purposes of managing litigation for the purposes of ensuring that the case is ready for trial at any time between allocation through to the pretrial review.

 

The ordinary business at a case management conference includes:

 

Ensuring previous directions made by the court have been complied with;

 

Review the steps taken by the parties in preparing the case for the final hearing;

Decide matters that should be addressed prior to the hearing, having regard for the overriding objective;

Make a record of agreements to progress the litigation;

fix further directions which the parties to the litigation are to comply with up to the trial.

 

In the course of managing litigation, the court will identify the fundamental issues in dispute between the parties, with a view to ensuring that the case progresses in accordance with the directions issued in the proceedings.

 

Regards

 

Andy

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Thanks Andy, read this yesterday.

I understand it's not a trial, more to do with establishing the facts for the judge but I'm still not clear as to the level of documentation I need to take or what to do beforehand - I don't want to slip up on procedural requirements or go unprepared.

For example do I need to submit a costs budget 7 days before?

Do I need a case summary or is that just the claimant?

Do I need to go with all my docs I will be relying on? and have copies for WH?

etc.

Thanks,

GF2k

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Thanks Andy, read this yesterday.

I understand it's not a trial, more to do with establishing the facts for the judge but I'm still not clear as to the level of documentation I need to take or what to do beforehand - I don't want to slip up on procedural requirements or go unprepared.

 

For example do I need to submit a costs budget 7 days before? No

Do I need a case summary or is that just the claimant? Does the directions stipulated you submit one?

Do I need to go with all my docs I will be relying on? and have copies for WH? Yes but only for your use

etc.

Thanks,

GF2k

 

Andy

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Thanks Andy,

No there is no stipulation that I provide a case summary, the original order simply declared a CMC to take place and then subsequently that the Claimant's application for extension would be heard at the CMC.

 

On that point my objection is on file so I'm sure it will come up at the CMC but it was only sent in by email, would it be advisable/a good opportunity to file a formal application (to refuse the extension/strike out for continued lack of documentation and non-compliance etc.) or unnecessary/too late to introduce in time for the CMC?

 

Thanks again for all your help,

gf2k

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Well you can raise the subject of failure to comply with directions at the CMC ...thats what its for as stated above...the DJ will outline if any sanctions are to be imposed and issue further directions on how the claim will proceed...should they further fail to comply then you could consider a formal application.

 

See what transpires from the CMC first.

 

Andy

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  • 2 weeks later...
Well you can raise the subject of failure to comply with directions at the CMC ...thats what its for as stated above...the DJ will outline if any sanctions are to be imposed and issue further directions on how the claim will proceed...should they further fail to comply then you could consider a formal application.

 

See what transpires from the CMC first.

 

Andy

 

Hi Andy,

Just had WH's statement of costs through the post, sent yesterday.

Not much mostly a few hundred pounds for case review and instructions to an LPC agent who will be attending the CMC.

 

I know you said not necessary to submit costs before the cmc but surely I will fall foul of court procedures if I don't?

CMC imminent so I will need to do this immediately by fax/email if required.

 

Can you help me understand if this changes anything?

 

Thanks,

gf2k

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As the defendant what would your costs be for attendance..have you had to take a day off work?

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As the defendant what would your costs be for attendance..have you had to take a day off work?

 

thanks,

as it's local half a day off - also travel and I've had to prep too but all pretty negligible compared to theirs I suppose.

I don't want to get hung up on costs if it could cause an issue but if I can get them I would like them, tbh I'm mostly concerned that I comply to court procedures and don't give myself a black mark for not doing something I should.

 

if I don't submit before the cmc I imagine I lose my chance to have costs considered without falling foul of court procedures?

 

gf2k

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Not sure costs would be allowed for a CMC...after all the CMC is being held to hear their application.I would just ask the Judge at the end of the hearing can you claim out of pocket expenses for today hearing..in view of the claimants application ?

We could do with some help from you.

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Not sure costs would be allowed for a CMC...after all the CMC is being held to hear their application.I would just ask the Judge at the end of the hearing can you claim out of pocket expenses for today hearing..in view of the claimants application ?

 

Thanks I would do that but the CMC was already set before WH's application which was then added to be heard at the same time, that being the case I probably can't ask the judge for costs at the end?

 

Do you know if there is/is not a CPR requirement to submit a Statement of Costs before a CMC?

I seem to remember something about supplying one 24 hours before, but then another said 7 days before.

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Im not sure GF...as the court as determined the hearing...I seriously doubt costs will be allowed for either party...they (Claimants) are serving you because you refused the extension..hence their application.

We could do with some help from you.

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Im not sure GF...as the court as determined the hearing...I seriously doubt costs will be allowed for either party...they (Claimants) are serving you because you refused the extension..hence their application.

 

Ok I'll see how things play out re costs tomorrow as I've now received (yesterday) a pack of documents from WH that they have clearly been sitting on until the last minute.

 

The application to extend was to give them time to receive documents from the OC that the original order asked for by end of Sept 2015!, namely:

a) The Loan Agreement

b) the Assignment of the Claim

c) Evidence of any payments made to the account by the Claimant in the last 6 years

 

The actual documents they have sent me yesterday are:

1. The original CCA with original Ts & Cs (NOT Signed and Blacked out/unreadable sections for Name & Address and % amounts for 4 other interest rate entries for purchasers, transfers, cash advances and total charge for credit)

2. Current Ts&Cs

3. OC card statements dated **/02/2009-**/04/2009 (never ever received these statements and they show only transactions labelled 'DCA payment' one of which is a payment of £1 - the order was prompted by my request for proof of who/how payments were made and these show no detail/proof and the order asks for payments by the Claimant, Cabot weren't the DCA at the time!)

4. Notice of Assignment dated ** October 2009 (never received this and no proof of service/postage)

 

I think I can argue a lot of this as non-compliant, but any thoughts?

 

thanks

 

gf2k

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Hi Andy,

Sorry to bug you but CMC tomorrow so need to get my head round a few key points.

Quick question re the agreement they have supplied.

 

The order includes a request for 'The Loan Agreement', which I take to be requiring a signed executed agreement.

They've just sent reconstituted copies of the original terms and the current terms with nothing personal included.

Isn't a signed agreement required by the court as this would for a May 2004 CCA?

 

I also read that even after a ruling in 2010(?) it is expected that (even for unsigned/reconstituted agreements):

"A copy of the loan agreement must contain the name and address of the borrower as it was at the time it was signed"

which this one clearly does not as it's all blacked out and unreadable.

 

Are either or both points good grounds to argue non-compliance with the order (at least for the agreement)?

 

Thanks,

gf2k

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gforce

not familiar with whole thread (excuse if wide), but;

generally;

s127 (3)(4) Con credit act (now repealed but applicable for things prior to 04/07). that requires them to show that there was a debtor signed doc that contained the prescribed terms. if that is the original cca which doesnt show a signature....?

any recon must be accurate (there is that kotecha v phoenix appeal case re requiring such, but you'll have to read it thoroughly to get its gist, and whether it wld be applicable in yr circumstances).

 

but, it seems the hearing is mainly re to give them more time as per cpr 3.1 (2)(a) (which does allow for app'ns after a deadline), and management. i dont know whether the J will hear any trial issues in detail.

are there any more docs they are after from the o/c, or wld it then be re the other point of the app'n re settlement, and any other management directions the J wants. if what they have disclosed now is it, then i suppose it may also be to avoid sanction for lateness. There is that recent case re strict sanctions re non compliance of orders, but i cant recall it atm...?

costs re the application against may be in issue if the application is granted, partic as is fast track? the judges discretion. you wld object and point out that it was due to them needing more time/non compliance, their application, etc, as andy points.

 

is yr hearing in the pm, hopefully andy etc can look in before.

IMO

:-):rant:

 

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ps

i think this was the case(s) re the courts requiring strict compliance with rules/orders etc, and not freely allowing relief from sanction.

http://www.keatingchambers.co.uk/multimedia/New%20Folder/Practical%20guidance%20on%20relief%20from%20sanctions%20after%20Mitchell%20and%20Durrant.pdf

IMO

:-):rant:

 

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I can only echo what Ford has stated GF...this is not a trial...only a CMC hearing...triable issues should not be raised...but if you wish to make the point that they have not complied with the directions....IE agreement recon...then get it on record.

 

If the debt is pre April 2007 then a recon wont cut it...not for enforcement purposes.

We could do with some help from you.

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