Help with an old debtor- CCJ looming!!

[rich2568]

I`m still here this eve. Will need help from someone before tomorrows post!!

[Laiste]

I have been having problems with my computer which is why I haven't been in touch. I am going to go through the AQ question by question, so have it in front of you. I do need to know how much the debt is for, to answer one of the Q's. If you can give me that info asap, we can get on with it.

 

On another issue, you can take the AQ along to the local County Court it was issued from, it doesn't have to be posted. They will happily take it and give you a receipt, there's no problem with doing it that way.

 

Regards,

 

Laiste.

[rich2568]

Thanks Laiste.

 

The debt is £3096.37.

 

The AQ answers that Tomterm quoted did not tie in with the actual A-H questions on the form- especially C- Pre-action protocols & D-Case Management Information.

[tomterm8]

Thanks Laiste.

 

The debt is £3096.37.

 

The AQ answers that Tomterm quoted did not tie in with the actual A-H questions on the form- especially C- Pre-action protocols & D-Case Management Information.

 

That's a bit odd. Do you have this form http://www.hmcourts-service.gov.uk/courtfinder/forms/n149_1105.pdf ?

[tomterm8]

Or do you have this one? http://www.hmcourts-service.gov.uk/courtfinder/forms/n150_1001.pdf

[Laiste]

Rich,

 

The reason Tomterm's AQ details don't correspond with your form is that depending on which track your case is transferred to, each AQ differs. Your case has been allocated to the Small Claims track and the AQ to be completed is quite short.

 

Just before we get into filling in the form I just want to draw your attention to the 1st question. Obviously the month is usually used to enter into "negotiation" with the other side. However, if you feel that you would benefit from taking an additional month to get more info from the Claimants, for example, the Notice of Assignment from them, then tick Yes. Personally I would, it will give you (and me) more time to prepare your case.

 

Regards,

 

Laiste.

[rich2568]

Or do you have this one? http://www.hmcourts-service.gov.uk/courtfinder/forms/n150_1001.pdf

 

Yes- I have this one. I believe you initially was referring to form N149- the one they sent me was N150.

 

Thanks Laiste for clearing up why this is (Small Track).

[rich2568]

I have now completed form N149- Allocation Questionnaire (Small Claims Track)- and am taking it personally to the court later today.

 

I did find out earlier today however that I had been sent the wrong form- N150. This was still an AQ- but for a different track.

 

For the record, Many Thanks Laiste for your hugely valuable input!!

[minky93]

Good Luck! Rich

[rich2568]

Thanks Minky.

 

Just got their AQ back through their solicitors- they don`t want 30 days to settle the claim ( Q1)- just `Summary Judgment`!!

 

Don`t worry- cause I`m ready for them whatever!!

[Laiste]

Hi Rich,

 

Got your PM. Have they detailed in the "other information" or is it an attached document that they are seeking summary judgment? They were probably awaiting your AQ and will more than likely apply to the Court to have a hearing in a bid to seek summary judgment, which is judgment without a trial. We will make sure your amended defence is filed b4 the 30 days is up, as I have a feeling they will apply for a hearing asap. It's a scare tactic to see if you will come to some pmt arrangement with them, but it's also them saying they believe your defence is not credible.

 

Don't worry about this, but if you could post their exact comments that would be helpful.

 

Regards,

 

Laiste.

[rich2568]

See Below.

[rich2568]

Hi Laiste

 

To be exact- A)SETTLEMENT- They ticked NO

B)LOCATION OF TRIAL- They ticked NO

C)PRE_ACTION PROTOCOLS- They ticked just Part 2 and ticked YES (Exchange of documents with the other party in order to assist in settling the claim)

D)CASE MANAGEMENT INFORMATION- Applications- They have ticked Yes. If Yes, What For- They have answered- `Summary Judgment`- For Hearing On- `They have answered `Waiting for court hearing date` Witnesses- They have answered- `William Hall-witness to tha claim` Experts- They have ticked all NO. Track- They have ticked- Small Claims Track.

E)TRIAL OR FINAL HEARING- How Long Do You Estimate The Trial/ Final Hearing Will Take- They have answered- 2hrs 15 mins. Are There Any Days When You, An expert Or An Essential Witness Will Not Be Able To Attend Court- They have ticked NO.

F) PROPOSED DIRECTIONS- Have you attached a list of the directions you think appropriate for the management of the claim-They have ticked NO

G) COSTS- They have left this Blank.

H) OTHER INFORMATION- Have you attached documents to this questionnaire- They have ticked NO. Have you sent these documents to the other party(ies)- They have ticked NO . Do you intend to make any applications in the immediate future- They have ticked YES- If Yes, what for?- Summary Judgment In The Space Below, set out any other information you consider will help the judge to manage the claim- They have left this blank.

 

 

Then it is dated 26-06-07 and signed by the claimant (can`t read?)- plus the solicitors name and address at the bottom in the box.

 

Now this AQ is the same one I recived from Southend- Form N150 (10.01)- which I found out later from the court is the incorrect form. I had form N149 (11.05). We have now both completed AQ`s- but they are different forms!!

[rich2568]

For the defence- I thought this would be a good statement regarding the poor C.C.A.:-

 

I regret that inspection of the agreement document indicates that it still does not comply with the Act in a number of respects – examples are

Details of any default charges which the customer or a relative of his is required to pay if he breaches the agreement

Also form and content - prescribed terms which must be present S64. 1-5

In addition you did not provide me with a copy of the T&C which were relevant and applicable to the agreement at the time of signing the agreement together with proof of their association with the agreement at that time.

Finally, I insist that Mr Az Alibhai signed on the agreement in a non-prescribed manner – please refer to the date of the application and the regulations for that date.

Your obligation to me to comply with the Act and you have not demonstrated to me that Mr Alibhai worked for Egg at that time and was authorised to sign the agreement.

The seriousness of these errors leads me to draw the conclusion that this agreement is at best unexecuted and you are therefore in default under the Act. Whilst in default you are reminded that you it is unlawful for you to attempt to enforce the agreement, make charges against the account, share my data with third parties, attempt to default me or attempt to sell the account.

I await your comments.

 

 

Any comments?

[Laiste]

Hi Rich,

 

Well their sols are clearly not that bright! As you say they have filled in the wrong AQ! I noticed that, when I was reading through the q's you detailed that they had answered.

 

They have already applied to the Crt it would appear, for a hearing for summary judgment and will be awaiting a Crt date. What they are going to try and do is get your defence struck out, on the basis of it being without merit and proceed straight for judgment against you. The hearing will probably be scheduled a short time after the month is up. I would recommend contacting the Crt first thing on Monday and asking for a copy of their application notice, which is what they will have filed to request summary judgment. You do need a copy of this so we know when they applied and just exactly we are dealing with. They should have sent you a copy of their application, but they have not done this clearly to keep you in the dark until the last moment. The idea being, that they would get the date for the hearing before you have a chance to object to it. A tactic very often used.

 

The comments you have posted are not what I would recommend including in the amended defence. They are not really appropriate. As I've said I will help you draft the amended version.

 

Regards,

 

Laiste.

[rich2568]

Thanks Again Laiste!

 

I just thought the points regarding the poor CCA could be used- sorry if they are not appropriate- this tells you how much I know, however I am willing to learn- honest:)

 

On Tuesday I will scan up the document r.e. `Transfer Of Debt To Tessera`or what they assume is the `NOA`- if you feel this would be appropriate.

 

Finally,regarding the c/c. If the penalty charges are included in the particulars of claim- which they are, then how strong a counter claim would I have against them? Essentially they have filed a claim with an unlawful amount requested. And also does the`NOA` have the penalty charges included in it- even though there is no amount at all specified on the notice? Here`s your quote for reference

One example of it being flawed, would be if the penalty charges have been included in the amount being requested and/or any other charges levied by the owners of the debt, that there is no provision for in the contract.

 

Lots of questions again Laiste- Thanks for your continued patience and determined opinion (Yes you are determined- and so appreciated).

[rich2568]

Sorry- its me again.

 

What about this that has been quoted r.e. Deed Of Assignment/ Notice Of Assignment.

 

The CCA over-rides the Law of Property Act regarding the purchase of Debts. Using the CCA you can demand the DOA regarding your alleged debt. The DCA's have to compy regarding the EVERYTHING as to rights and responsibilities as would the OC.

 

Most DCA's purchase debts using the LOP, because they thought then they could legally enforce debt. We have become more savvy regarding the Laws and now with much pain the DCA's are realising they no longer can hide behind the LOP.

 

The Cabot Fan Club have done a lot of work on this matter and Cabot are learning painfully, what was accepted Industry practise is no longer tolerated.

 

I have seen the 52 page document between MBNA and Cabots. Every DOA, must be accompanied with a Letter of Assignment from the OC.

 

If it goes to Court, the must produce the complete document before a ruling can be made that the debt is enforceable. Firstly you have to prove that your original agreement is unforceable, then everything flows from there.

 

 

Comments please?

[Laiste]

Hi Rich,

 

I wouldn't expect anything other than lots of Q's from you, following our discussion vis a vis debts and other issues!;-)

 

The purpose of the defence is to refute the POC and whilst some of the points you raised might be useful in a c/c, they are not relevant for the defence.

 

If you could post up the document purporting to be a NoA that would be useful. The fact that the NoA does not contain any financial amount renders it entirely legally unenforceable. You have mentioned penalty charges, which would certainly be one argument to raise in a c/c. You will recall I highlighted the others.

 

With regard to the comments posted in respect of the purchase of debts, there are a number of inaccuracies in that post. The Consumer Credit Act 1974, does not override the the Law of Property Act 1925 regarding buying debts. In fact the CCA 1974 does not even deal with assignments. Section 136(1) of the LoPA 1925 covers absolute assignments, which is what a debt purchased by a DCA is. The law of assignment is complex, but we only need concern ourselves with what is relevant regarding absolute assignments which is dealt with by LoPA.

 

An important point to bear in mind is that until a NoA is sent and received by a debtor, an assignment remains equitable. What that essentially means is, the new owner of the debt has no legal right whatsoever to sue in his own name. So if the NoA is not received or is faulty in some way, the alleged new owner of the debt cannot sue a debtor. In doing so, unlawful harassment, offences under the Malicious Communications Act 1998, breaches of the DPA 1998, and defamation spring

to mind......!

 

Of course DCA's will try and hide behind legislation if it suits, I think that's pretty much a given! They would hide behind Auntie Mary's apron if they thought it would get them out of a sticky spot!

 

I would be interested to know what it is exactly in the CCA 1974 that DCA's have to comply with regarding assignments? You can request it from them and in all likelihood they will tell you to take a hike. You can request it under the disclosure rules if a claim has been filed, that doesn't mean they will produce it! They might ask for a hearing and tell the Judge it is a commercially sensitive document, so therefore they should not be compelled to disclose it! It simply isn't as straightforward as the person saying you can "demand" the DoA. A person will have to fight them every step of the way to get them to furnish it, as it would reveal the consideration (price paid).

 

It is complete and utter nonsense for anyone to suggest that you have to prove the enforceability of the agreement and that everything flows from there! The DCA (new owner) has to establish a legal right to make a claim against a debtor before anything else! If there is no right of action, then arguments based upon the agreement's enforceability are entirely academic! So we are back to the NoA. I fail to understand why anyone would conclude that the starting point is the agreement, that is a matter that drops to third place after the NoA and DoA (assuming you might be able to get their case struck out in the absence of proof of ownership)! If the Crt declares they don't have to produce it, then your argument centres upon the NoA, which if it is faulty, or hasn't been received, means their case is over before it starts-there's no need to prove the enforceability or otherwise of the agreement!

 

I trust this answers all your Q's!;-)

 

Regards,

 

Laiste.

[rich2568]

OOhh Laiste you are sooo good at getting your point ( and the facts of course) across;)

 

 

Regarding a c/claim- can I quote:-

and whilst some of the points you raised might be useful in a c/c,

 

You have mentioned penalty charges, which would certainly be one argument to raise in a c/c.

 

Based on your opinion (which let me tell you I highly value)- how high would you rate the strength of a possible c/claim with these factors?

 

No more questions- honest:-)

[Laiste]

There's little to be gained from stating a point, unless you can make it convincingly! I think you'll agree!

 

With regard to a c/c, you have to accept that there are no guarantees that you will get damages in any sum requested or at all, based on arguments you might raise. As previously stated, litigation is a risk, for all concerned, but that shouldn't dissuade you from raising legitimate arguments! I cannot give you a percentage rate of how successful a c/c would be, I'm not mystic meg!!! You have good arguments that you can raise, but in the absence of the claimants trying to reach a settlement with you to end this, you will have to argue your case in front of a District Judge for him to decide! That's just the way it is, I'm afraid!

 

Regards,

 

Laiste.

 

 

 

Based on your opinion (which let me tell you I highly value)- how high would you rate the strength of a possible c/claim with these factors?

 

No more questions- honest:-)

[Laiste]

I've tried to take off the last comments under my name in my last post, to no avail! I guess trying to figure out edit options is beyond me!!! You can't be good at everything, apparently!

 

Laiste.

[rich2568]

Thanks again Laiste.

 

I`ve just been in touch with the court and they have advised that there was an application for Summary Judgment on the 28 June. This has gone through to the District Judge for his directions and I shall await his response.

 

When asking for a copy of the application- she advises me that I shall receive this when the judge has made his directions?

 

So I sit and wait!

[Laiste]

Hi Rich,

 

You are entitled to a copy of the application notice and any accompanying documents they filed on the 28th June. In fact, they should have sent you a copy of the app notice at the time they filed it with the Court.

 

You need to ring your local court again and explain that the Claimants did not serve a copy of their application on you as required, and you need a copy asap. I would go and collect it, you may have to put the request in writing possibly. If you wanted to submit your own app notice stating for example, that the Claimants have no basis for requesting summary judgment, you are in a much better position to raise objections if you know what they've said! They have not had the courtesy to serve you with a copy and if the Court won't let you have a copy, you are in the dark somewhat! The Claimants have done this to stop you raising objections, thinking that by the time you get wind of their intention, the Judge will have made his decision for a hearing to go ahead! If he had an app notice from you filed around about the same time, he would consider the applications of both parties and make a decison. It's very much one sided as things stand at present!

 

Perhaps the person at the Court doesn't realise you're entitled to a copy of what they've filed. You need to impress upon him/her (assuming you get the same person) that you are entitled. She told you that you will get a copy of the Order, which is not the same as the Claimant's application. If she tells you it will be included with the Order, tell her you need a copy of it before a decision is made, so you can decide whether or not to file an app notice also!

 

Regards,

 

Laiste.

[rich2568]

Thanks Laiste.

 

I`ve read up on Summary Judgment and it looks quite a devious tactic- but that`s no surprise there is it?

 

I read that this is a typical reason for doing so:-

 

I believe for this reason that the Defendant has no real prospect of successfully defending the claim and there is no reason why this case should be decided by a trial.

 

 

I`ll pop down to the court tomorrow to see if I can get my hands on their application- then decide, based on the content of the form whether I could put in an application also.

 

If I put in an application arguing against their reasons- would this also be the right time to present an amended defence? Is time on my side at present?

 

Thanks for your continued support Laiste:)

[tomterm8]

It does sometime backfire on the claimant, as sometimes the claimants case is struck out at the hearing.