Spiritgirl -v- Various DCAs

[ncf355]

SG

 

Its just them rattling your chain from what I can see

 

Seems it might be in order to write to the court with copies of your disclosure request and their reply to request an order from the court that they supply the requested information?

 

Don't let em hack you off, they are just playing mind games

[ncf355]

LOL@CAR

 

Posted mine just before your post registered - nice post mate

[MoonHawk]

I agree with both Car and ncf here. I would write to the court stating that they are refusing to comply with your request and as such are ignoring the "The overriding objective".

 

Best Wishes

MoonHawk

[spiritgirl59]

Thank you guys

 

I need to try to keep it simple at the moment as my brain is all over the place with so much going on here I will write to the Court as you've suggested for now.

 

Back soon, and thanks again for coming in with your advice. I had another sleepless night about all this last night. I'm sure once I've dealt with one, any future claims from bozos chasing me will be easier - its just the first toe in the water so to speak, its a bit daunting to say the least!!

 

Love SG x

[spiritgirl59]

How does this sound :-

 

 

The Clerk to Court

Northampton County Court

 

 

Dear Sir

 

Re: In The Northampton County Court

Lloyds TSB –v- Mrs Spiritgirl

Claim No. XXXX

 

I refer to the above matter and would respectfully request the assistance of the court.

 

The court will be aware that I acknowledged service of the above claim via www.moneyclaim.gov.uk on 20th November 2007, a copy of the Acknowledgement of Service is enclosed herewith.

 

I indicated to the court that I will be defending this claim in its entirety.

 

On 21st November 2007 I sent a letter to Messrs Sechiari Clark & Mitchell, Solicitors for the Claimant, a copy of which is enclosed herewith. The Claimant’s Solicitors have refused to comply with my request under the Civil Procedure Rules, and instead I have received a letter from them dated 5th December 2007 (copy enclosed) stating that they will await the court’s directions for the further conduct of this matter once my response to the claim has been filed.

 

With all due respect, as the Claimant’s Solicitors are ignoring the overriding objective I am unable to properly prepare a defence in this matter.

 

May I respectfully ask the court to order the Claimant to supply the requested information as per my letter to the Claimant’s Solicitors dated 21st November 2007.

 

Yours faithfully

 

 

Would you change anything or let it go as is????

 

What happens when the court get this? Will they keep me informed?

 

Thanks Moonhawk, car and NCF for your help so far x

 

 

Love SG x

[car2403]

Knowing MoneyClaim Online, SG, they will want this on a formal Application Notice and a £40 fee () for processing it!

 

The form you need is N244, which you'll find here;

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf

 

Send this letter to them, but I think will reply wanting the formal Form completing and a fee paid first. When do you have to submit a Defence by? (You may need that holding Defence after all!)

[spiritgirl59]

Thanks car

 

OMG £40! I will have a look if I am exempt as we are on full working families tax credit with the disablement element - when I took Lloyds to court for charges I didn't have to pay any court fees. Back soon, I will go and suss it out.

 

Love SG x

[spiritgirl59]

OK have phoned the court helpline now and explained the situation.

 

The lady there suggested first of all that I phoned SC&M and asked them for the CPR information (!) or phone Lloyds TSB and ask them for it (!)

 

I told her that Lloyds have totally ignored me and SC&M are now doing the same so she suggested the best option would be to submit my defence asap together with any documents I want to rely on.

 

She said to include in the defence that I have not been supplied with the information I need to properly prepare a defence.

 

The actual deadline for my defence going in is 21st December.

 

So car I think its now best if I submit the holding defence as you have advised. She suggested it goes by mail and not online, and in any case MCOL is going to be off line for maintenance from 16th to 31st December apparently!

 

I'll set to preparing it and post it for you to have a look at if that's ok?

 

Love SG x

[MoonHawk]

This is exactly what I ended up doing with my case against Next. They delayed supplying the info until the last day. Have a look at Next Directory Making a Claim & CCA

 

Best Wishes

MoonHawk

[car2403]

OK have phoned the court helpline now and explained the situation.

 

The lady there suggested first of all that I phoned SC&M and asked them for the CPR information (!) or phone Lloyds TSB and ask them for it (!)

 

I told her that Lloyds have totally ignored me and SC&M are now doing the same so she suggested the best option would be to submit my defence asap together with any documents I want to rely on.

 

She said to include in the defence that I have not been supplied with the information I need to properly prepare a defence.

 

The actual deadline for my defence going in is 21st December.

 

So car I think its now best if I submit the holding defence as you have advised. She suggested it goes by mail and not online, and in any case MCOL is going to be off line for maintenance from 16th to 31st December apparently!

 

I'll set to preparing it and post it for you to have a look at if that's ok?

 

Love SG x

 

This is interesting, as everything I've seen from MCOL says "Staff on our Helpline cannot give legal advice"!

 

You must have caught them on a good day, (well, it is Christmas, after all!) but I'd take that advice with a pinch of salt - CPR Part 16 requires concise POC, without it the Court stay/strike out the claim, but aren't compelled to do so.

 

Moonhawk - I think I've pointed Spiritgirl to you Defence previously, definately something she can use I feel.

[spiritgirl59]

Hello again friends

 

Well I have prepared what I think would be a good Defence, most in part to using Moonhawk's (thank you Moonhawk xx) . Please can you have a good read of it and let me know what you think. I have also prepared a letter for the Clerk to Court outlining what stress this whole situation is causing to me and I have put that below the Defence for you to have a look at. It might not make any difference but it sure makes me feel better, because today I am trying to think of reasons to keep going, I feel like cr*p to be honest I can't stop being weepy, thank goodness for all of you or else I don't know where I would be.

 

Anyhow here goes :-

 

IN THE NORTHAMPTON

COUNTY COURT

 

CLAIM NO: XXXX

 

 

 

 

 

B E T W E E N

 

 

 

LLOYDS TSB BANK plc

Claimant

 

-and-

 

MRS REALLY NAFFED OFF SPIRITGIRL

Defendant

 

 

 

 

 

HOLDING DEFENCE

 

 

 

 

 

1. The Defendant denies the allegations made in the Claimant’s particulars of claim and puts the Claimant to strict proof thereof.

 

 

 

2. The Particulars of Claim are summary in nature and do not disclose sufficient grounds for bringing any action. Despite this, the Defendant pleads as follows, but seeks to reserve the right to amend this Defence in such circumstances that the Claimant provides more detailed particulars at a future point in these proceedings;

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

 

The Claimants’ Particulars Of Claim disclose no legal cause of action and they are embarrassing to the Defendant as the Claimants’ statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard the Defendant wishes to draw the court’s attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written 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.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

Consequently, the Defendant denies all allegations on the Particulars of Claim and does not know what case she has to meet.

 

4. On 21st November 2007 the Defendant requested the disclosure of information under the Civil Procedure Rules from the Claimant, however the Claimant has failed to produce any of the information requested. The information requested amounted to copies of the Credit Agreement and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by the Defendant and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a list of charges applied to the account.

 

5. On 5th December 2007 the Claimant acknowledged receipt of said letter however failed to either refer to it further nor respond to the contents in any way.

 

6. The Defendant therefore respectfully asks that the court grants her permission to amend this defence when she has received the necessary information.

 

7. With respect to the claim, it is denied that the Defendant is liable to the Claimant as stated in the claim, or at all:

 

Having requested a copy of the credit agreement, which has (thus far) not been produced by the Claimant, the Defendant puts the Claimant to strict proof that such a document exists, in all respects compliant with the Consumer Credit Act 1974. In the absence of such a document, the Defendant denies that there has been any failure to make payment in accordance with any alleged contract.

 

The Claimant having failed to produce a copy of a properly executed credit agreement 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.

 

8. It is neither admitted or 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.

 

9. In respect of that which is denied, during the period in which the account was operating the Claimant debited numerous charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Defendant understands that the Claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

The Defendant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

Accordingly the Defendant puts the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. The Defendant avers that any default notice sent would have included these charges.

 

The Defendant puts the Claimant to strict proof that any default notice sent to the Defendant was valid. The Defendant notes that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester v Swaine ) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give the Defendant a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119.)

 

10. Further, the Claimant states that the Defendant has refused to pay sums due under agreement. In its particulars of claim, it has not explained under what terms of any agreement these sums were due and the Defendant puts the claimant to strict proof that said monies are due.

 

11. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines, the Defendant believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

12. The Defendant asks the court to order that the Claimant provide full disclosure of documentation in order that the Claimant may enter a full Defence, and failing the provision of full disclosure by the Claimant during a timescale to be set by the court, the Defendant respectfully asks the Court to strike out this claim.

 

 

 

 

Signed:………………………………………………………

By the Defendant

 

 

Dated: ……………………………………………………..

 

 

 

 

The Clerk to Court

 

 

Dear Sir

 

Re: In The Northampton County Court

Lloyds TSB –v- Mrs Spiritgirl

Claim No. XXXX

 

Please find enclosed my Holding Defence in the above matter.

 

May I respectfully make the court aware of the intolerable stress this matter is causing me. I am unable to work due to severe Depression and Anxiety and have been treated my GP and mental health team for many years. Of late I have felt increasingly suicidal and my medication has been increased. My GP is also seeing me on a regular basis. The Claimants have persisted in harassing me constantly despite the fact that they are unable to prove this alleged debt by providing me with necessary documentation to which I am entitled under the Consumer Credit Act 1974.

 

For this reason I am forced to submit a Holding Defence and endure ongoing stress and anxiety, and I would ask the court to consider this pertinent fact.

 

A copy of my previous correspondence to the Creditor requesting information under the Consumer Credit Act is enclosed herewith from which the court will ascertain that I have made every attempt to resolve this matter in the proper manner according to Consumer Law, but without success, and it is the Creditor who is pursuing this matter into the legal system without valid documentation, and thus wasting the court’s valuable time.

 

Yours faithfully

 

 

 

 

 

 

Feel better for that! Going to make a cuppa now and try to chill out a bit. I'll be back in a bit.

 

Love SG x

[car2403]

Looking good SG!

 

I would give the full citation for Woodchester, in case the Judge wants to look it up - Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998

I also wouldn't be submitting supporting documents at this stage, as this will be ordered before the hearing - if it gets that far!

 

I'm not sure what effect the letter to the Clerk will have, but it can't do any harm at this stage.

 

Don't forget to send a copy of your Defence to the Claimant, by way of service - we don't want them challenging YOU under CPR now we are challenging THEM...

[spiritgirl59]

Thank you car and everyone for your support xxx

 

I will prepare the Defence and letters today.

 

(((big hugs))) to you all, and thank you for the clicks to those people I have helped, I'm glad I can help other people with this thread too, that means more than anything else.

 

Love SG x

[babybear39]

Can't offer legal dvice but can give you *hugs* of support

[spiritgirl59]

(((babybear))) all supportive hugs are very welcome right now bless you xx

 

Holding Defence and accompanying letters are being sent Recorded Delivery tomorrow and as soon as I have some news I will post back.

 

Once again a BIG thank you to all you guys for helping to get me through this so far, for all your caring and support, I could not have done this without you xxx

 

 

Love SG x

[car2403]

(((babybear))) all supportive hugs are very welcome right now bless you xx

 

Holding Defence and accompanying letters are being sent Recorded Delivery tomorrow and as soon as I have some news I will post back.

 

Once again a BIG thank you to all you guys for helping to get me through this so far, for all your caring and support, I could not have done this without you xxx

 

 

Love SG x

 

SG, I'm normally not one to blow my own trombone (I never did master the trumpet!) but I just have to speak out again... (Not like me, as you know!)

 

YOU are the one that has gotten yourself through all this already - you've had a battle on your hands already, bless you, and you've come out fighting and with your fists up ready! This, I think, is down to your character and drive not to let this beat you up! Good to see.

 

Yes, you've had some help along the way, but really you've done all the hard work to get this far - not us. It's easy to sit this side of the forum and offer support from afar, (which I know you rely on, which is cool) but it's something completely different to having to take this on "in person", so to speak, and fight your corner - with or without top-notch support from CAG.

 

It's your drive and determination that will see this through. We are just the audience that shares you pain when you suffer and offers a round of applause when you do something right in support. We are also the ones that shout "he's behind you" when you're heading in the, perhaps not right, direction and get you to think in a different way. (Well, it is the Season for this, after all!) This is what I've seen in your posts over the last few weeks - I can see you gaining more composure, taking an objective view of your issue, grasping the bull by the horn and putting up a formidable defence to attack!

 

This post doesn't really add anything to your case or to what I've said already, but I felt I needed to point out to you that you are doing a fab job! I hope I don't ever have to be a Defendant against you, Mrs!

 

:grin:

[Hopeful1]

I just want to second Car's fantastic post. All summed up beautifully.

The feeling of 'community' and 'care' on this site when people are low is sometimes overwhelming, but oh so comforting.

 

[spiritgirl59]

(((car)))

 

I needed the tissues when I read that, its so lovely of you to say all that, and it really boosted my confidence and made me feel so comforted. I read it out to my OH because he knows how low I've been feeling (and that I've been saying I am a waste of space, which upsets him) so he said to say thank you too for helping so much to make me feel better xxx

 

(((Hopeful1))) big hugs to you too.

 

Love SG x:)

[Hopeful1]

(((car)))

 

I needed the tissues when I read that, its so lovely of you to say all that, and it really boosted my confidence and made me feel so comforted. I read it out to my OH because he knows how low I've been feeling (and that I've been saying I am a waste of space, which upsets him) so he said to say thank you too for helping so much to make me feel better xxx

 

(((Hopeful1))) big hugs to you too.

 

Love SG x:)

 

Hugs right back atcha! Thanks for message

[babybear39]

That's right girls and guys, we are a community and we're here not to just offer legal advice but also emmotional support and encouragement. Where's the 'hug' smiley

[sosumi]

Yes I really think we need a hug smiley! Something to say "We're in your corner, keep going!" (which is what I want to say)

- So I'll just say it anyway. We're in your corner. Keep going!!! :)

[spiritgirl59]

((((hugs back to you all)))

 

Yes, we need a huggy smiley definitely - there's a yellow one somewhere which puts his long arms round himself and gives himself a big hug, its really cute, I've seen it on other forums but I can't remember where its from!

 

Merry Christmas to everyone too, and a Happy New Year!

 

Love SG x

[spiritgirl59]

Hiya friends

 

Got the following letter from Northampton County Court today - I assume its a standard one?

 

I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen. Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that time has elapsed the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay.

 

The part I have highlighted above, what does it mean? how on earth can this be resolved "informally" when the claimant has not provided a CCA or any other paperwork requested under CPR for that matter

 

What in your experience do you guys think will happen now then?

 

Love SG x

[car2403]

It's a template letter alright, SG.

 

The Claimant gets a copy of your Defence then has to contact the Court to tell them if they want to proceed, considering your Defence, or not.

 

The next step will be that you get an AQ to fill in with a date that it needs to be sent back to your Local Court along with Notice of transfer to that Court. (If they decide they want to pursue the claim, that is!)

[spiritgirl59]

Thanks car xxx

 

So I shall just sit and wait now and see what the New Year brings.

 

Have a lovely Christmas ! I hope Santa brings you something nice!

Love SG x