Advice requested regarding court threat **WON** Case Struck out

[Rilly]

Quick update - confirmed via Royal Mail tracking that my letters have been delivered to Cohen's today. (A proof of delivery is also available online which could come in handy.) In the meantime, I've had a further letter from Cohen's today, referring to the Court claim and requesting full payment 'failing which we shall seek judgment against you'. It goes on to remind me of the benefits of maintaining a satisfactory credit history, and the fact that further solicitor's costs will be added to the amount if I don't pay up immediately.

 

Although the words are obviously chosen carefully, this is about the most overtly threatening letter I've ever had. I really don't know how they are allowed to do it!

 

Anyway, resolve not shaken in the slightest, in fact, exactly the opposite.

 

Watch this space..

[Edz11]

Print off the delivery confirmation and the electronic sig page too. It might drop off eventually and you may well need it later. No action needed now until three days before defence due in. You then fax solicitors to say you need a copy of the executed CCA containing the prescribed terms and the default notice and you need them quick in order to prepare your defence.

[Rilly]

Thanks Edz. Delivery confirmation & signature are not available yet but I'll keep checking back and ensure I print them off when I can. I have my fax machine on stand by!

I believe I'll be receiving further paperwork from the Court in due course? I'll no doubt need further advice if and when that arrives..

R

[Rilly]

Further to my last post I now realise that I won't receive any further contact from the court until I respond with the defence section of the paperwork I already have.

 

As an update, I yesterday faxed the solicitor's, Cohen's, with a further urgent request. I don't expect a reply, unless of course something arrives in tomorrow's or Monday's post, but in any case, Monday 14th is my 14 day deadline to respond to the court. With that in mind, I would be grateful for an idea as to what to include in the defence section of the 'Defence and Counterclaim' page. I understand that should I receive nothing from Cohen's I will be submitting an 'embarrassed defence' and my intention was to complete the form with an overview of the card account; that is how much I originally spent on the card, the dates and amounts of the payments etc.

 

Will this be enough at this stage or do I need to go into more detail?

 

Incidentally, for the benefit of anyone else in a similar position, I've spoken with the Court, and they are quite happy to have my response faxed to them, which of course means I can wait until the last minute for a reply to my request for information from Cohens.

 

I'd be grateful for any further advice.

 

Thanks,

 

Rilly

[pt2537]

Hi Rilly.

 

I got your PM, sorry for the delay in replying, are you ok writing your defence for this case?

 

if you need help then let me know, i have some defences on my machine here with me

 

 

 

Regards

 

paul

[Rilly]

Hi pt, thanks for getting back to me. I have formulated a basic defence, totalling all payments made, charges levied, interest & account cover charges.

 

I have also given an overview of the facts; that GE Money were unable to supply all the copy statements, and the fact that I have had no response from their solicitors regarding additional info, cca etc.

 

Will that be ok? I was just about to press the go button on my fax machine when I saw your reply!!

 

Regards, Rilly

[pt2537]

Hi pt, thanks for getting back to me. I have formulated a basic defence, totalling all payments made, charges levied, interest & account cover charges.

 

I have also given an overview of the facts; that GE Money were unable to supply all the copy statements, and the fact that I have had no response from their solicitors regarding additional info, cca etc.

 

Will that be ok? I was just about to press the go button on my fax machine when I saw your reply!!

 

Regards, Rilly

 

Any chance you could post a copy, removing all the personal details first?

 

it will be easier to read through and point out any parts which need amending

[Rilly]

Claim No. xxxxxxxx

Defence

I am not in a position to fully defend the claim because following my initial request for copy statements, GE Money were unable to provide a total of 14 statements due to ‘system issues’. (Some transaction history has been provided for 8 of those months, however, I have evidence to show that the history given is inaccurate. E.g. a late payment charge of £12 has been omitted from the transactions detailed in Sept 2007.)

Furthermore, despite 3 requests for further information (2 written and 1 faxed) I have had no response from the complainant’s solicitors, Cohen & Co.

During the period I held my account, the monthly statements were sent to the wrong address until at least Oct 2004, despite at least two phone calls advising change of address. (I moved house on 170903) The first statement with the amended address is dated 2nd January 2005 (Nov 04 & Dec 04 statements not available)

However, the facts are;

My original purchase was to the value of £36.00. It would appear that a further purchase to the value of £3 was also made and later returned. There is no data to support the purchase but the return is documented.

I have made a minimum of £397.28 in payments (no data available for 8 months)

Late payment fees total a minimum of £288 (no data available for 8 months)

Account cover total £135.53

Interest total £136.59

[Rilly]

pt, above is the my defence as is... it's a little bit war & peace but I had quite a lot to say! I've also put in a counterclaim for the disproportionate charges.

Rilly

[pt2537]

did you request a copy of the credit agreement under a CPR request? and have they provided it?

[pt2537]

also,in my opinion you need to rebuff their claim under the credit agreement since they haven't supplied one, without a credit agreement the court cannot enforce the agreement

[NitrousOxide]

Hi,

Noticed as well that they have used a standatd template for the POC. I bet if you had the contract "clause 7" wouldn't relate to raising a claim.

[Rilly]

Thanks pt, I've altered the defence accordingly. Also, that's interesting nitrous, I wonder if I'll ever get to see the contract?! I'll keep posting with any updates. Thanks again to all for your help.

[Rilly]

I faxed off the defence on Monday. Like an idiot I completely forgot that it could be done online. Again for the benefit of anyone else in a similar position to me, I spoke with someone at the Court regarding the counterclaim fee. It's £45 in my case, but that isn't required to be paid yet.

 

I've still had no reply from Cohen & Co, so their deadline is well and truly missed.

 

Can someone tell me what happens from this point on? Do I wait to hear from the Court?

 

Any advice would, again, be appreciated.

 

Rilly

[pt2537]

i would say the next thing you will recieve will be an allocation questionairre from the court

 

sit back until then and wait to see if you hear from the solicitors relating to your request for info

[Rilly]

Thanks pt, the allocation questionnaire arrived today. It all seems fairly straightforward, except for the 'other information' section ('set out any other information you consider will help the judge to manage or clarify the claim, including any other information you consider should be supplied by the other party').

 

I could do with some guidance as to what is expected - the notes on the back refer to attaching certain documents. I'm thinking this would be the letters & fax requesting the cca agreement etc?

 

Do I need to cover the same detail I've already mentioned on my defence form?

 

Incidentally, still no reply from the solicitors.

 

Thanks again,

 

Rilly

[pt2537]

What AQ is it ? is it a N149 or 150 form?

 

i have some directions that i often use so if you let me know what form it is i can post the correct ones

 

Regards paul

[Rilly]

Hi pt, thanks for the quick reply. It's the N149 form.

 

Rilly

[Edz11]

Paul likes to use the "daisy cutter" approach to litigation. There are no survivors when Paul's writ one of his missives.

 

I think that in the "other info" section it's best to keep it short and sweet so the Judge doesn't have to think.

 

"The claimant has been informed of outstanding information in my defence dated xxxx

 

Because the claimant did not reply to my request for information before the deadline for my defence I have only been able to make a preliminary defence.

 

A Part 18 request has been made to the claimant on xxxxxx in the hope that this will assist them in providing the information originally requested - although they have not yet responded to it. A copy of the Part 18 request is enclosed".

 

Using case management powers the Judge should come up with an order that will produce the info you've requested. The alternative is for the Judge to say "god, there's too much here - let's have a directions hearing first".

[pt2537]

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

 

 

 

 

 

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

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

 

 

 

 

Between

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

and

 

xxxxxxxxxxxxx - 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 and 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.

 

 

2. 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.

 

 

 

Cheers Ed:D

 

right then, heres the directions and section G other info that i use in these cases

[Rilly]

Thanks guys, this is all a great help. However, things have taken a slightly different tack, as I have today received a copy of the CCA from Cohens' together with all the copy statements that are available (there are still about 14 missing).

 

This is 4 days past the deadline set in my request.

 

The covering letter they sent is reproduced in full as follows;

 

Dear ...

 

We refer to your letter of ... in which you have made a request for information under the Civil Procedure Rules.

 

We are not obliged to provide this information, and would advise that the particulars of the claim detailed in the County Court Claim Form should be sufficient to allow you to respond accordingly. That said, we have enclosed your credit agreement and available statements of account.

 

Please be advised that this firm is not the creditor in this matter. The creditor is CL Finance and we are merely instructed to act on behalf of that company to recover the outstanding balance due. We are not the creditor and are not covered by the Consumer Credit Act 2006. We are therefore not obliged to provide you with information such as a complaints procedure or the date the debt was acquired.

 

Please respond to the claim form with either an appropriate defence or an admission and offer of repayment.

 

Failure to do so will result in a judgment being entered without reference to you.

 

Yours sincerely,

 

What's the best course of action from here please?

 

Rilly

[pt2537]

Rilly

Any chance we can take a look at the agreement?

 

it would be good to see how correct it is and if it has any missing information

 

it may be the case that this agreement isnt worth the paper its written on

 

obviously remove all personal details first

 

regards

paul

[Goldlady]

Quite a few of my statements are missing too - enough to prevent me submitting a proper defence:D

[Edz11]

Rilly - as Paul says - a look at the agreement's essential.

[Rilly]

Will do. Having a few problems with my scanner at the minute, but I'll endeavour to scan it, photoshop out the identity details & post asap.

 

Thanks,

 

Rilly