Nationwide/dryden claimform - credit card debt **DISCONTINUED**

[tiglet]

which post is that?

[1stlifeline]

You could agree to the attempt to settle before hearing and perhaps send a letter to nationwide asking them to drop the case and outline your defence arguments?

I have already had a letter from Nationwides solicitor saying that in spite of my defence they will be proceeding

 

Respectfully request the claim be struck out as the credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

So is it acceptable to just write that or do I need to print out a full statement as inhttp://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

[tiglet]

Go with what Paul has said, I would suggest

[1stlifeline]

Ok Tiglet, thank you. I still need someone to help on adapting Pauls original to suit my case. Fingers crossed.

[tiglet]

Have try yourself honey (you know your case better than anyone)- then we'll have a look together.

 

Remember - it has to be in tomorrow, not 9am tomorrow - when can you take it in?

 

 

I have to pop off for a little while because i have a crying baby with a dirty nappy but, in the words of Arnie, I'll be back

 

Sorry, back again now - how are you getting on?

 

I can see the cavalry have arrived by viewing the bottom of the page - are you OK if I go to bed now? I have the school hobble in the morning - I'll check in again when I get up at 6.30.

[1stlifeline]

OK, looking at the template and adapting it the way I think I have ended up with this.

Do I need to add or delete anything please.

Im a bit unsure as to wether I need the bit in red.

 

If the court is in agreement, the defendant respectfully requests that the claim be struck out as the credit agreement suplied is not compliant with the consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI1983/1553)

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 judgement.

29. The court's powers under section 127(!) 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, wether 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 pre-requisite 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 umexecuted agreement pursuant to sections 62 and 63, or failure to compl with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exeption regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

This allocation questionnaire and and its attachments were sent to the claimant on ==/==/====.

 

Any opinions please, thanks

 

Sorry Tiglet, only just seen your last post, have a good nights sleep

[pt2537]

when does the N150 need to be in?

 

i can draft a piece for section I other info if you want me to so thats not a problem,

[1stlifeline]

Thanks Paul, I know you are really busy at the moment but Im so grateful for your help. It has to be in tomorrow but having said that I am going to hand deliver it to the court tomorrow afternoon so I can work on it tomorrow morning if that gives you time.

[MARTIN3030]

Looks ok

Maybe start it;At the courts discretion..........

[1stlifeline]

Thank you Martin

[steven4064]

I will be around in the morning if needed.

[1stlifeline]

Thank you so much Steven

[Michael Browne]

Part A. I assume I am ticking NO to 'do you want to try to settle before the hearing' therefore what do I put in the box 'State reasons why you consider it inappropriate to try to settle'?

 

The claimant has refused to negociate

 

Part D. Is it just the defendants name which goes in the 'Witness name' box? Whats best to write in the 'Witness to which facts' box

 

All facts and matters pertaining to the claim

 

Track--- I assume this will be 'fast track'

How much is the claim for? If it is only just over £5000, it's worth trying for Small Claims, the judge will decide, so you have nothing to lose by asking

 

Hearing time. Whats best to put down as the 'estimated hearing time'?

 

1 hour

 

Proposed Directions ? Not sure what I should be putting here.

 

 

The Fee. Should the fee be paid straight away?

yes, this must be paid with the AQ

 

Other Information:-

 

Attached documents- I assume there are non as they were attached to the defence?

 

Do you intend to make any applications in the immediate future? -I assume this is No.

 

Correct

[1stlifeline]

Thanks Michael, the claim is just over 5000 but theres a big difference costs wise if it goes fast track as opposed to small claims so tomorrow I will have to pay for fast track because of the amount of the claim so its too late to ask for small claims isnt it.?

[pt2537]

My questions are

 

Part A. I assume I am ticking NO to 'do you want to try to settle before the hearing' therefore what do I put in the box 'State reasons why you consider it inappropriate to try to settle'? The claimant has failed to provide any supporting evidence to allow me to investigate this matter, they have failed to supply documentation when requested and therefore until such time as they offer the documents that i have asked for, i cannot even see what case i have to answer.

 

Part D. Is it just the defendants name which goes in the 'Witness name' box? Whats best to write in the 'Witness to which facts' box

 

Put your name, as a witness of fact, and put All Facts

 

Track--- I assume this will be 'fast track' go for Fast if the claim is substansially over 5K

 

Hearing time. Whats best to put down as the 'estimated hearing time'? 2-3 hours

Proposed Directions ? Not sure what I should be putting here.See attached

 

 

The Fee. Should the fee be paid straight away? NOPE NO FEE PAYABLE unless you are counter-claiming

 

Other Information:-

 

See Below for the info, however, in the large box marked I other info

Please find the following attached to this allocation questionnaire;

 

1) Section I - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008.

 

 

Attached documents- I assume there are non as they were attached to the defence?

 

Do you intend to make any applications in the immediate future? -I assume this is No.

 

Sorry to be a pain but I need to be sure I do this right and it has to be handed in at the court in the morning.

Thanks very much for helping.

 

see above for the info in blue

 

print the info below out and attach it to the AQ

 

ANY QUESTIONS ASK AS IM AROUND FOR THE NEXT HOUR

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N150 Allocation Questionnaire

 

Section I - other information

1. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

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,

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

2.

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;

 

The claimant has failed to serve any supporting documents in relation to this claim and as a result it has placed me at a disadvantage due to the fact that no particulars have been offered as to how the figures claimed are calculated nor is there a copy of the credit agreement served with the claim form. Since this is a Consumer Credit Case relating to a Consumer Credit Agreement Regulated by the Consumer Credit Act 1974, for the court to consider enforcement of such an agreement, the agreement must be produced before the court, and further more, for the court to be able to consider enforcing such agreement, the agreement must be in compliance with the Consumer Credit Agreements Regulations 1983 SI 1983/1553

The House of Lords and the Court of Appeal has consistently backed this position that the agreement must comply with the legislation quoted above and I have included an excerpt from the House of Lords in Wilson v First County Trust Ltd - [2003] All ER (D) 187

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.

 

 

I made a statutory request pursuant to section 78 of the Consumer Credit Act 1974 and requested that the claimant provide me with a copy of the agreement between parties. All that was supplied was a poorly legible agreement, which failed to contain any of the prescribed terms as laid out in Schedule 6 of the Consumer Credit Agreements Regulations 1983. The effect of this would render the agreement unenforceable by way of section 127(3) CCA 1974. Therefore the defendant requests that the court order that the claimant supply the agreement and other documents requested in the draft directions

 

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

 

 

 

 

and print this on plain paper too

 

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, which the claimant seeks to rely upon
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• 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.

 

 

 

[Michael Browne]

Still might be worth asking at the court. You may have to pay the Fast track fee, but get the difference refunded if the judge agrees to Small Claims

[pt2537]

Ok, well if its only just over 5K

 

GO SMALL CLAIMS, the judge will decide anyway so tick small claims

[1stlifeline]

Wow thanks Paul. I was under the impression that I had to pay the £200 fee, as were others who have replied on my thread.

 

Plus also, just to clarify Part A. In this instance they have sent me an agreement, although not an enforceable one. Its my other Nationwide claim where they had not responded to my request for info before I had to send in my defence so does what you wrote still stand?---The claimant has failed to provide any supporting evidence to allow me to investigate this matter, they have failed to supply documentation when requested and therefore until such time as they offer the documents that i have asked for, i cannot even see what case i have to answer.

 

Thanks again for all the help Paul

 

So are you saying that I have to pay a fee if its not small claims?

[Michael Browne]

Oops forgot you're the defendant, so no AQ fee payable

[pt2537]

Hi there Pam

 

Righty then,

 

Firstly No ,no fee is payable if you are the defendant in the case and you are not making a counter-claim . you only pay a fee wehn you are

 

A the Claimant

 

or

 

B making a counter-Claim

 

secondly, you could go with what MB wrote for point A, to be honest i wasnt fully back up to speed with the thread as ive been away for a while so i hadnt fully refreshed myself with your thread

 

so MBs comment " The claimant has refused to negotiate " works for me

 

now, forget the fact that they have supplied the agreement because it sucked big time and was completley unenforceable

 

so what we are asking is for the court to order them to provide a complaint document, which we know they dont have, and if they dont their butts will be thrown out of court, thats as long as the judge orders the directions

[tiglet]

It looks like it's all in hand for you Pam.

[1stlifeline]

Thank you very, very much all of you. You dont know how much I appreciate the time you have taken to help.

[pt2537]

youre very welcome Pam

 

thats what we are all here for

[1stlifeline]

One quick question, its ready to got to the court now.

What do I need to send to the claimant. ?

Do I send

1, a photocopy of the completed allocation questionaire

2, a copy of the Draft Order for directions

[steven4064]

Yes, both