BLS No CCA but still demanding payment

[pt2537]

hi

 

bear with me and i will post up something for you to go in

 

regards

paul

[pt2537]

Hi there,

 

ive uploaded a defense that should be of help to you

 

you will obviously need to amend the personal parts

 

should you need any further help let us know

 

regards

paul

 

PS i have amended the defence at 2334 hrs with some important additions

[pt2537]

Damn Ben, you beat me too it again,

 

i must get a faster computer;)

[pt2537]

Hi poker mad

 

Thanks

 

no point pooching the Defence like they pooched the POC's is there hehe

 

that should shut them up accordingly, good luck and if there is anything at all you are unsure of then please please ask as ultimatley you are the one who is defending this action , you need to be fully au fait with this

 

regards

paul

[pt2537]

 

Also what period of time had actually elapsed sice you requesting the CCA and rgetting your application form ?? i was under the impression that they have as follows 12+2 for the CCA then 30 days after this if they have still not supplied it that they have commited a criminal offence and could no longer pursue the debt through court !!!

 

not quite

 

they have 12 working days on reciept of a valid request to supply the debtor with the documentation requested. if they fail the debt enters a default situation and becomes unenforcable until the comply

 

if they allow a further 30 calendar days( plus the 12 working days) to lapse without compliance they commit a criminal offence

 

Now then

 

if they produce a valid agreement or invalid agreement for that matter they can still apply to court for an enforcement order . then you would need to defend the action

 

i hope this helps

 

 

regards

paul

[pt2537]

Is that it?

 

my word, SC&M have really gone down in my estimations

 

 

if thats the POCs in full then there is a lesson here for all.

 

this is how NOT to write a set of particulars

 

well and truely pooched me thinks

[pt2537]

well the are not relying on the law that's for sure:lol:

 

 

PMSL when i saw that attempt

[pt2537]

poker mad,

 

to be honest that defence should deal with those pocs more than adequately, nothing needs to be added from what i can see, any one else got any thoughts?

[pt2537]

Cool, now its a waiting game to see what they decide to do

 

not wanting to tempt fate but i wouldnt be surprised if you didnt get a Notice of Discontinuance when they realise they are P*$$ing in the wind

[pt2537]

oh dear oh dear

 

how can they request judgment? erm im rather confused, maybe they were hoping that you wouldn't defend.

[pt2537]

I think SC&M are very confused too, to be honest

 

they are applying for judgment very prematurely as you have entered a defence and are clearly defending the claim.

 

i think we need to send them a "Dear Sir please wake up" letter

[pt2537]

ok then they are talking out their ass so to speak

 

your defence was filed inside the deadline wasnt it?

[pt2537]

well no worries then, its a scare tactic

[pt2537]

I dont see any reason to apply for a stay here, as it stands they are on a loser as the document they supplied you does not contain any prescribed terms and provides you a complete defence to their legal action

[pt2537]

Hi Goldlady

 

It makes me wonder how many other poor souls there are out there suffering this same fate.

 

its unbelievable that companies who you would expect to know how to comply with the law can get things so wrong, after all its harder to get it wrong than it is to get it right

 

the biggest thing we can do is to make people aware of their rights through forums such as this one

 

still,if we can stop one person suffering these idjits then thats a start

 

regards

paul

[pt2537]

cool, ok what AQ is it you have N149 or N150?

 

i can help you fill it in and i also have some directions to go with it

[pt2537]

In the ************* County Court

Claim number **********

 

 

 

 

Between

************* - Claimant

and

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

this is the draft i wrote for another user recently

 

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N149 Allocation Questionnaire

 

Section G - other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

 

thats the Section G other info which i drew up for the same person.

 

they were in pretty much the same situ as yourself

 

incidently have you heard anything from the claimant with regards the defence?

[pt2537]

right then,

 

ok . with all due respects to Gingerbaby, the direction posted in post 94 are bank charges directions so theyre not likely to help this situation im afraidd

 

the ones ive posted above are more relevent to your situation

 

you need to get the AQ filed in plenty of time so are you ok with it,

 

 

the part which states

 

Please find the following attached to this allocation questionnaire:

 

1) Section G - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the defendant on **/**/**.

 

should be added to the AQ and the two parts i posted above should be printed out seperatley and attached to the AQ.

 

if youre un sure of anything shout

 

the orders i wrote ,if the judge agrees with them, should put them under pressure and if they fail to comply their claim could be thrown out of court so its worth putting them in

 

regards

paul

[pt2537]

cool , no worries mate, as i said if you need anything else let me know

[pt2537]

ok thats not unexpected to be honest,

 

well, if it does go before the court,and as Spamheed suggests they dont turn up, i suggest that you have a wasted costs order up your sleeve for your costs incurred by their unreasonable behaviour along with a request that the court declare the debt unenforceable byway of s142 CCA 1974;)

[pt2537]

Can i ask, if you are defending a claim is this like a ccj whereby your defence is all written or would would you be actually required to appear (even if not in a court loacl to you)

 

I am getting very scared as they have now defaulted and commited a criminal offence but i have not heard much but each day i live in fear of the postman

 

well

 

lets not forget, if you file a CCA request, they fail to comply and you then cease payment

 

there is a high probability that sooner or later a N1 court claim form will drop on your matt

 

now if the cca is invalid, you can defend it quite easily

 

however if you ignore it and bury youre head in the sand then they will win by default

 

now, in answer to your question

 

you file a defence to the claim in writing, however when the hearing takes place, and there is no guarantees that a hearing will take place as the claim can be struck out at any point, if the hearing happens you will have to attend for sure

 

regards

paul

[pt2537]

any chance you can post up what the order says please?

 

just in case there is any thing you need to do etc on the order

[pt2537]

Hi there

 

Basically, the case management conference is exactley that

 

there will most likely be directions as to who must do what by when

 

so its key importance that you ask the judge to order they disclose the requested documents etc

[pt2537]

Hey Pokermad

 

when exactley is you case management conference?

 

regards

paul

[pt2537]

Monday 19th Feb, can't wait. I have to take day off work just for a 20 min hearing.

well make note of the time it costs you, then if/when you win you make their solicitor extremely happy by submitting an application to the judge for costs, i think the rate for a LIP is 9.25 per hour in prep work so you could ask the judge to consider the time its taken you to research the legal issues in this case etc