Thanks IGNM I will do that.... it did seem strange; I phoned the court just to check. The clerk said something along the lines of "if the Judge says it, it is so". I was sure he was wrong, but didn't want to rock the boat - I would far rather the claimant told the Judge he was wrong than me I assume it means I probably will get fast track rather than multi-track (if they don't strike out that is).

OK, an update... I submitted the AQ with a draft directions for striking out on the basis of the defective DN. Although the claim was for in excess of £20K, I asked for allocation to the fast track. A few days after I received a copy of the AQ from the other side, requesting multi-track and estimating their costs at £7,000 (for a hearing they reckon will take a day). In my AQ I said I was willing to negotiate, and included an offer of £1 a month when I sent a copy of my AQ to the other side. I heard nothing until today..... This morning, I received a copy of an order made by the DJ under CPR 3.3 allocating the case to the small claims track!!! (and offering free mediation)....Has anyone heard of this before, and what are the implications for the claimants £7,000 costs estimate

Bump

Hi guys, Sorry for the late hour, but I am in desperate need of some advice. Tonight I have been completing the AQ and putting together directions (with the invaluable advice of IGNM & 42man) and an amended defence to take to the court tomorrow or first thing on Friday. I have never received the DN, and when it eventually turned up (convieniently dated a month earlier than stated in the POC) it turns out to be defective. Perhaps I am a cynic, but I decided to check the termination notice (which I did receive) against the copy of the same sent eventually as part of my CPR request. It is similar, but substantially different; some amounts are different, the dates to pay the balance are different, and there is a complete paragraph missing as regards a charge. To me, it seems as the copy supplied in response to the CPR request has been created for the purpose....is this allowed, or should I be bringing this to the attention of the court, and if so , how? Thanks

Thanks

*phew*

Hi IGNM, I have just had a read of your defence (very comprehensive ). The only thing which struck me was the fact that you mention a statutory 7 days in respect of the default notice and not 14

Hi IGNM - thanks for all your help. I have posted up all the documents earlier. In the AQ there is a section F headed "proposed directions". 42man has suggested a draft direction above, which appears to be a request to strike out based on the defective DN. Should I use this direction and submit an amended defence? In my holding defence, I did reserve the right to submit an amended defence, and was simply going to send a copy to the court and a copy to the claimant (and wait for them to tell me I had done it wrong )

Hi IGNM, If you have something already in your arsenal then that would be great or alternatively I could put something together this evening and you could then tear it apart for me . I have put this evening aside to do the AQ as well, as they have to be in by the 5th...........I take it that the amended defence is in addition to the draft directions to strike out on the basis of the defective DN. Thanks

Hi 42 man, The info is great, thanks . The default notice was never received, and in the POC, it was referred to as having been dated the 3rd February...I did receive a termination notice dated the 6th February. My original CCA request generated a copy of the agreement, some terms & conditions and a copy of the termination notice, but no default notice. My CPR request generated nothing initially, but following a reminder, the same documents including a default notice turned up one day before the deadline for my defence (I had already filed an embarrased defence, so now need to file an amended defence). The default notice when it turned up was dated the 3rd January, and not the 3rd of February as stated in the POC. I am assuming that the claimants will state the reference to the 3rd Feb in the POC's is a clerical error, but it all seems very suspect to me, especially as this is the first I have honestly seen of any DN. It would appear that the DN supplied is flawed anyway due to the number of days (I wouldn't have had a clue about that if IGNM hadn't pointed it out)

Thanks both Is the section in red applicable in this instance. From the statement, the only charge appears to be a £25 default charge which would appear to have been added before the account was in dispute? I have to say that I didn't ever receive the default notice. I received the termination notice shortly after it was dated, and in my ignorance assumed that was it. The POC refers to a default notice dated the 3rd February (which, I assume, would have created problems for a termination notice dated the 6th Feb), so am I being unnecesarily sceptical about the default notice (when it turned up the day before the deadline for submitting a defence) being dated the 3rd January

Hi IGNM and thanks for all your help. I have looked through the AQ, and the only areas I am not sure about are the reasons for selecting fast track, and what if anything I should do about section F, proposed directions.

Thanks for all your help, it is very much appreciated

Hi IGNM, Thanks for that...sorry to be dense, but have you any suggestions as to how to word the ammended defence, and what is an N244 (am am very new to all this and a bit daunted by it all)

And the remaining attachments Statement Page 1.pdf Statement Page 2.pdf Termination Notice.pdf Terms & Conditions.pdf

I will try again with attachments POC.pdf Agreement Page 1.pdf Agreement Page 2.pdf Default Page 1.pdf Default Page 2.pdf

Hi all, I hope someone can give me some guidance as to what to do now. I sent a reminder to my CPR 31.14 request, to which there was no reply, so I filed a defence as above to make sure I didn't miss the date. I very quickly received a letter from the court saying the case had been transferred to my local court and enclosing forms N150 which have to be returned by the 5th June. Two days later I also received a letter from the claimants solicitors enclosing the documents asked for. I will try and attach all documents, and can only assume that they delayed sending them in the first place to see if I would submit a defence. I would be really gratefull for any help or suggestions as to how to fill in the N150, and how to amend my defence (if there is one) now that the documents have been produced. The only thing which strikes me as odd is the Default is dated 3rd January whereas the POC refer to a default dated 3rd February.

Thanks for that Sequenci. I am right at the start of the process at the moment. An income drop of 75% due to credit crunch means I am making token payments only to a number of creditors (mortgage & sec. loan up to date). Total unsecured is around £115K so bankruptcy has to be considered as an option, although the main drawback would be I can no continue in my occupation. Currently, I have RBS taking action (separate thread in legal issues) and we have reached the AQ stage. It would be my intention to try and defend any action as it would seem I have little to lose by doing so, and much to gain. MBNA sent a threat-o-gram yesterday entitled "Potential Court Order on your Home", and whilst I know it is just an attempt at putting the frighteners on, it got me thinking. In the case of a defended action where the claimant succeeds, would the court consider an application to pay by installments at the time of making the judgement, or would that come later? and would the claimant be able to ask for a "forthwith" judgement and charging order right away? - Sorry for so many questions.

Thanks sequenci. Am I right in thinking that a charging order can't be obtained if the CCJ payments are maintained in line with the judgement. Thanks

It is theoretical at the moment, just trying to explore possibilities which may be necessary in the future and trying to judge how hard to fight any attempts at charging orders that may arise. Would it make a difference if in negative equity apart from being able to buy the beneficial interest off the OR

Hi, I was wondering if someone can answer a question for me; If a lender succeeds in getting a CCJ for an unsecured debts, and later succeeds in getting a charging order, what happens if the debtor declares bankruptcy? My understanding is that bankruptcy "settles" and CCJ's, and if this is the case, would the charging order then not apply, or is it a case that the charging order makes the debt secured, and therefore outside of the bankruptcy

Hi kilkenny, The appointed representative will only be an appointed representative of the principle for business regulated by the FSA. Unfortunately, this does not include the vast majority of bridging loans, second charge loans or commercial loans including buy to let. The Appointed Representative may have agreed not to go outside of panel for unregulated business, or may have complete freedom to do so, depending on his agreement with his principle. Because the loans are not RMC's (Regulated Mortgage Contracts), you will not have been issued with a Key Facts Illustration; it is actually a rule breach to use the Key Facts Logo other than as permitted/required by the FSA. Because of this you are unlikely to have had the procuration fee disclosed in the same way as for an RMC, but my understanding is the law of agency probably entitles you to disclosure anyway. Complaining to both AR and the principle is good advice, as whilst the FSA may not be interested in complaints in relation to non-regulated contracts, the indemnity insurers will be, and will normally expect any complaint which could result in a claim on the indemnity policy being treated in the same way and with the same seriousness as a complaint concerning a regulated contract.

Hi, Does anyone have any thoughts on this as a defence; In the XXXXXXX County Court Claim number XXXXXX Between XXXXXXX - Claimant and XXXXXXXX - Defendant Defence 1. I XXXXXXXXX of XXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by the claimant. 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. On the xx April 2009 I made a formal request to the claimant under sections 77 and 78 of the Consumer Credit Act 1974 for a true copy of the credit agreement and other documents as required by the act. The claimant became in default of this request on xx April 2009 rendering the agreement unenforceable whilst the default continued. I ask the court consider striking out the claimant’s case on the basis that there existed no legal right to action at the time the claim was made. 4. In the Particulars of Claim the claimant avers that they comply with Sections III & IV of the Pre-Action Conduct Practice Direction. Section III 6.1 states “before starting proceedings the parties should – (2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.” and Section III 7.1 states “Before starting proceedings – (1) the claimant should set out the details of the matter in writing by sending a letter before claim to the defendant.” The defendant explicitly denies that any letter before claim complying with Annexe A of Section IV was received, and furthermore, that no reasonable attempts to resolve the matter have been made by the claimant with or without ADR. The defendant invites the court to consider whether a claimant should be permitted to bring an action on the basis of “last resort” under the provisions of the Pre-Action Conduct Practice Direction despite having made no attempt to comply with the provisions thereof. 5. Notwithstanding 3 and 4 above, the Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: - 6. The claimant’s particulars of claim are very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16. 7. The claimant has issued proceedings in the Banbury County Court therefore according to practice direction 16 Para 7.3 7.3 Where a claim is based upon a written agreement (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. 8. The claimant has failed to include a copy of the written contract which he relies upon and it stands to reason that they are in breach of their obligations under the Practice Direction. 9. Further more the claimant offers no particulars in relation to how the sum claimed has been calculated and no statements are attached with the claim in support of the figures. 10. A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form. 11. It is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand. 12. On xx April 2009 and again on the xx May 2009 I wrote to the claimant requesting information pursuant to the Civil Procedure Rules 31.14 and to date the claimant has failed to respond to my request. 13. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 14. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced. 15. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate document. 16. In addition to the prescribed terms, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974. 17. The claimant is therefore put to strict proof that such a compliant document exists. 18. It is explicitly 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. 19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, 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 prescribed format for such 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). 20. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119). Conclusion 21. Without Disclosure of the relevant 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, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974. 22. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's 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. 23. Alternatively, should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and will seek the courts permission to amend my statement of case accordingly. Statement of Truth. I XXXXX, The Defendant, believe the above statement to be true and factual Signed ..................... Date...................

Hi, I am sat here trying to put together a suitable defence along the lines of; 1. Action started whilst claimant in default of a section 77/78 request so illegal. 2. Embarrassed and claim not particularised, no default notice ever issued/supplied. 3. Claimant claims compliance with Sections III & IV of the PACPD - and I don't think they have. I can find lots of example defences to point 2, but I am struggling with points 1 & 3. I remember seeing at least one for point 1 but can't seem to locate it now and I am open to suggestions to point 3. Thanks

There is no email address, but I could fax it. Is a fax receipt acceptable confirmation of receipt? Thanks