As far as I can see Hillards, you've done everything correctly (except perhaps the content of the N244 app that you haven't posted) & it's the court that have messed up big time. Have you/applicant spoken to the Court Manager? Try & get hold of him/her, not just some desk clerk. If you can't, I suggest a formal letter of complaint to him. It clearly says on your form that the case would be heard without a hearing & you double checked by phone so that is what you were relying on & you should have been able to trust that the information you were given was correct. I would tell him I was giving him the opportunity to rectify the matter before I exposed him to the mercies of my local MP & the press. I have never heard of a case like this before but it is always wise to turn up at court when a date is set - just in case. To take it forward in the immediate future, if you don't get any joy from the CM, I think I would be tempted to put in another app for a set aside of this order on the grounds that the court misinformed you.

Excellent news Philpatt. I agree with coledog - get that defence in on time unless you get confirmation from the court that it has been discontinued. It's not your fault the court can't keep on top of its mail & as DB says, it might give you a chance to go for costs. Whatever happens, you need to report Phoenix to OFT for this blatent abuse of process/fishing expedition.

So, sounds as though they haven't filed their AQ on time & are being given extra time to do so. Watch that deadline date carefully Rom & check with the court that they comply on the 16th. If they don't, give the court a nudge on the 17th to put it before a DJ for immediate SO.

Looks to me as though they haven't submitted that AQ monty but that the Claimants have applied for a stay (despite the fact that it states 'all parties having agreed' on the order & you didn't!!) which in effect allows them breathing space in the hope that you will sign that CO. Suggest you phone the court (the one it has been transferrred to) & ask if that is the case; if so, you will need to write to the court, state that the Claimant did not seek your permission for the stay & ask for it to be lifted. I suspect that it may be left as it is & nothing will move forward until the xx November. In the meantime that CO letter will need a carefully worded response. Post up a draft if you are not sure...

Ignore! Cheeky beggars!!!

letsgetitsorted is correct to be wary of consent orders & the costs issue, ski. However if a consent order is signed & put beofre a DJ for recording as part of your case, they cannot obtain a CCJ unless you default on the terms of the consent order. In practice that means that if you are even a day late in a payment being received, HC will apply immediately to the court for that CCJ & any further enforcement they consider necessary. Could you post up what they have sent you as a draft CO please? (minus personal details)

They will probably try & say that this was becasue it was transferred to the Santander system & required a new number but haven't they already said it was because the card was lost??!

Great gazbo. So if you don't get that amended POC on 6 October (and don't forget it now has to be accompanied by a copy of the agreement they seek to rely on- CPR!!) have an app ready to go for SO for non-compliance of court order & the fact that as they have supplied nothing to back up their claim, it is impossible for it to proceed.

I agree. An acc. no is hardly likely to change on a change of business name. When do you think it was transferred from Debenhams store card to GE credit card? Can you tell from your SAR or have you got any statements that show when you started spending in other places then Debenhams? Did they send statements with the SAR docs?

Excellent pumpytums! And you've made me smile this morning.

The fact that they have issued a POC in another acc. no is not in itself anything to contest as it looks as though they can provide evidence that it refers to your account; however even the card was lost I don't think it would be usual practice for a new account number to be issued, just a new card & that needs clarification. Have you got a log as part of your SAR? If a new account no. had been issued because of lost card, it should be on there; if not, it would seem to indicate that the account no. was changed as part of the assignment procedures & they need to prove they gave you notice(s) of that.

Hi monty I'm dropping as requested by CB & have only just caught up with this fiasco. So to take a step back first: Now getting up to today: The letter they have sent you is, in effect, a request for you to sign a consent order although the wording is extremely poor - IMO not even junior clerk standard! IMHO your idea to respond by seeking an assurance as stated above is flawed as it cannot be supported by a court order & no matter what they may promise, it could all be fairy dust in another 6 months time & they (or another DCA gullible enough to buy the debt) will start all over again. Their case is absolute rubbish, you should win hands down! I certainly wouldn't be entertaining any thoughts of consent orders. However if you feel you need to respond to their corresp, I suggest that it is worded extremely firmly, in effect telling them to bog off or you'll go all the way, with the responsibility for any costs to their client being entirely in their court. i.e. discontinue now or I take you to the cleaners. However, before you decide, I suggest you see if that AQ fee is paid on the 1st

First of all monty - you have left personal details on Page 1 of item (5). Suggest you emove & repost when amended. Then to tackle the docs they have sent: 1. Are they claiming the agreement is a recon or a copy of the original? Does it contain your sig? Have they included a copy of any T&Cs? Not only are they are referring to Clause 7 re. interest in the POC but they would also have to demonstrate that any T&Cs were within the 'four corners' of the agreement when it was signed This is an agreement for a Debenhams store card. Have they supplied an agreement with GE for a credit card - two very different animals with different requirements under the CCA. 2. The DN is incorrect - it states 14 days rather than a specific date 3. NOA - have they sent one for GE to Santander? Have they provided proof of registered posting? 5. Another bit of hogwash IMHO

The Claimant now has to decide whether to go ahead & pay a hearing fee. The court will notify you of a transfer of proceedings to your local court when that takes place. You may also get notification that directions have been issued. If they are not, I suggest you make an app for disclosure. It costs £40.00 (unless you are exempt from fees) but you should be able to get an order to reclaim the fee from the Claimant as part of your app.

Comments on Cohen's WS in reponse to the following paras of your defence: Para 5: since when was a fee applicable to a CPR31.14 request? You did not request a copy agreement under S78. Pity they can't read! Para 6: what docs have you now received monty? Para 7: no comments I note! Perhaps they don't recognise S87 Paras 9-15; all denied but no reasons given. Also noted that THEY expect YOU to provide proof that you didn't receive documentation from them!!! What about them providing evidence that they did send all the docs?? You can't prove a negative nor can the court rule on one. Typical HC rubbish. You can go to town on this one monty. When does your WS have to be in by?

I've copied your defence here monty to save switching back all the time 1. I xxxxxxxxx xxxxxxxx of x xxxxxxxx xxxxx, xxxxxxxx, xxxxxxxx xxxxx xxx am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited. 2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof. 3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: - a) The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters; b) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding 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 default notices issued or any other matters necessary to substantiate the claimants claim. c) 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. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16, paragraph 7.3. d) 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. 4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer 5. Further to the case, on the xx xxxxxxxx xxxx I requested the disclosure of information pursuant to the Civil Procedure Rules part 31.14, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default notice. 6. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974. I am also unable to assess the validity of any Default Notice purported to have been served on me. 7. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974, and section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. 8. The prescribed format for such a document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (amendment) Regulations 2004 (SI 2004/3237) 9. It is averred that the default notice referred to in the particulars of claim does not contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'). The defendant puts the claimant to strict proof that the prescribed timeframe has been given. Under section 88(2) of the Consumer Credit Act 1974, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Merely stating the default notice would allow 14 days for any required action is non-compliant with the requirement of the 1983 Regulations owing to the need to specify a date (rather than an interval of time). 10. A default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The amount detailed in the Claimant’s claim is incorrect. 11. Without a valid default notice it could be inferred that the bringing about of a county court Judgement without first seeking remedy via a default notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the Consumer Credit Act 1974. 12. Furthermore, the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. I received the Notice of assignment, on xxx xxxxxxxx 2010 and I note the date of issue on the claim as the xxx xxxxxxxxxx 2010 which suggests that the notice of assignment, which must be served before the assignment if it is to be effective in law, was not posted before the claim was filed, so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice. 13. Consequently due to the claimant’s failure to supply the documents required under the Civil Procedure rules and the fact that the claimant has failed to sufficiently particularise the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof. 14. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16. 15. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the Courts permission to amend my defence accordingly if such paperwork is presented to the court.

FG

I think you will find a judgment was recently made refuting this. It may be being appealed but as the thread pertaining to that issue has been removed I don't know the latest. Maybe someone else does?

They really do not seem to have a leg to stand on do they? I think that maybe they are not so much opposing the set aside as the strike out & are hoping that by kicking off about the SA they will at least get the SO out of the frame, giving them another bite at the cherry. If that's the case, IMO as long as you present a cast iron case for the SA to stand, it is more than likely they will get a retrial regardless of having ignored CPR31.14 requests & court orders. IMO your response to their pleadings should be simply 'have you brought an enforceable agreement & default notice to show the court today?' If they haven't, point them to S60/61 of the CCA1974 (not to mention S127), ask them why they couldn't produce a copy under S78 or SAR & why they think a further extension order from the court will enable them to find one. Remind them & the court that whilst they are in breach of S78, no enforcement action can be taken & until they produce a compliant agreement, the case has cannot proceed & the court should throw it out now. Make sure you know the CCA backwards, print a copy out to take to court with you. They will probably try to bring Carey into the argument so make sure you know it well (again print a copy off & highlight the relevant bits) Whilst a recon may be accepatble under S78, it is not acceptable in court as evidence of an enforceable agreement plus the docs they have produced are not even close to a reconstruction of a BC agreement. Look on the BC forum & drag off a couple of egs to take with you. Even if they get a retrial you really shouldn't have much problem seeing them off eventually if this is all the evidence they can produce. Just make sure you keep a record of all your costs, including these proceedings so you can slap them with a big bill at the end of it all.

Thanks for all that info atom, helps to understand the series of events. So, my thoughts FWIW: You say a court order was made to produce docs in relation to set aside issues. I am slightly confused here as the SA was granted (albeit BC are now opposing it) so why would the court have made an order? And if so, at what stage? Before the SA hearing? Is it possible for you to post that order or copy it onto your thread please? And if it was made prior to the SA are BC saying now that they didn't receive that order aswell as the SA notice of hearing???? Sounds a bit unlikely doesn't it? The fact that they haven't produced an agreement with your SAR aswell as under your S78 request would seem to indicate they haven't got one. These T&Cs are rubbish & they must know that so why are they pursuing opposition to a SA? (hmm.. maybe I've answered myself here). The whole thing should be dismissed although I suspect the most you can realistically hope for is confirmation of the SA & a retrial. I suspect they will try & show that you were aware of the original hearing & therefore the judgment shouldn't be set aside. Of course, you could point out that they should have been aware of the SA hearing but they now claim they didn't receive any paperwork. Sauce for the goose methinks... However to ensure your case is solid, what sort of evidence have you got to demonstrate incontrovertibally that you were out of the UK? eg. How long were you away? Did you have mail rerouted? If it was business, can you get a letter from your employer stating the dates etc? If it was pleasure can you get copies of the airline tickets or invoices? (BTW CPR31.15 is used in conjunction with CPR31.14 but as this is all up for grabs at the hearing, it's doesn't apply to you now)

yet the POC states: They can't have it both ways! When did you send your CPR31.14 request gareth & did you follow it up with a CPR31.15 warning? Or are you just now relying on getting directions from the AQ? If so, you can just put an app in for disclosure (& Cabot should be ordered to pay the costs )

Well these pages in no way constitute an agreement - they are T&Cs with (presumably) your name & address entered in the cancellation box!! It doesn't even fulfil a S78 request as a recon. This should be thrown straight out of court but it's more probable that BC will be given more time to produce an agreement compliant with CCA1974. Can you also answer the following: 1. What date is the hearing? 2. What were the grounds you put forward for SO? 3. When did you make the CPR31.14 request? 4. Have you ever sent a SAR? In order for BC to prove their case they will need to provide 1. an enforceable agreement 2. a valid DN & proof of posting 3. proof of the sum they are claiming And in order for you to contest it you will also need the above copies. IMO you are quite right in your assumption that they may treat the hearing like a mini-trial & you must be ready with as much documentation, knowledge of the CCA that you can provide. So far, you have followed the correct procedure in making a CPR31.14 request with which they have not complied so you need to ask the court to make an order. Rather than waiting for the SO/SA hearing & asking for directions, I would prempt this by submitting another app for disclosure under CPR31.15 immediately (providing you have time before the scheduled hearing) Come back with answers to the above & let's see if you can move this forward...

FG

Can you let us know the court Philpatt asap as the letter to the sols in Post #6 above may need amending to reflect this.

I said before wilchy - BC uses template letters, therefore don't take his correspondence too literally. Although in this case, it could be to your advantage if you wanted to come up with proposals for a settlement IMO the statements have arrived 'cos someone in BC's back office can't read/doesn't understand your correspondence re. info under CPR31.14. Take it as a bonus. If you are thinking of evaluating a figure to propose as a settlement, you need to work out all those charges & the interest that has accrued on them & then deduct the total from the sum claimed before you consider an offer. Link for interest calcs here: http://www.consumerforums.com/resources/templates-library/48-bank-templates/118-interest-calculation-spreadsheets