VOLVO v CABOT (Bank One) Help needed, Court Claim received **DISCONTINUED**

[foolishgirl]

Hi Volvo, alerted by CB so dropping in as requested.

 

I've only read this thread fully so will look at B/C one later but here are my comments so far FWTW;

 

1.They are perfectly entitled to issue one claim form for both debts although it may confuse matters further down the line but that maybe what they're banking on

 

2. The POC is rubbish & should be defended as such i.e. short, sharp defence, letter to Morgans asking them to amend their POC & then go for a strike out. As CB pointed out, they are also claiming stat. interest - no!! However, as you have submitted your AS, you have time for this - more later...

 

3. The first thing you need to do is to send a CPR31.14 request. You can only ask for stuff in relation to what they have stated on the POC in this. If you need more (eg. DNs, statements etc. use a CPR18 aswell) Templates below...

 

4. It looks to me as though you have at least 1 x non-compliant CCA (Bank One) & 2 x defective DNs not to mention dodgy NOAs for which you really need to see the relevant DOAs to make sure they were correctly assigned (make sure the claimants tie up & also the dates - they can't issue NOA or POC until after the dates assigned)

 

CPR31.14 Request Template (Amend to reflect 2 x cards)

 

On xxxx I received the Claim Form in this case (Ref: xxxx )issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your Particulars of Claim:

 

1: the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2: the notices & deeds of assignment

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you

YF

CPR18 Request

 

REQUEST FOR INFORMATION UNDER CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of Proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence & counter claim.

 

YF

 

[foolishgirl]

Sorry if you feel comments made give you the impression your case is weak volvo - on the contrary IMO you have a very sound case & should defend fully. See below:

 

 

Little unsure as to whether i have a strong enough case to defend with as the comments received appear to be a little negative and lacking confidence, in my opinion, on my chances of success with this Bank One and Barclaycard claim from Cabot(Morgan).

 

My defence appears to be:

 

CCA o/s, as still not received the original T&C's (only received current ones for Bank One and none at all for Barclaycard.

 

No compliant agreements, no enforceable debts!

 

DN's, possibly weak

 

DNs do not comply with legislation i.e. even if (& it's a big IF) they turn up enforceable agreements, both accounts have been terminated on the back of defective DNs & as such, only the arrears at the time of the issuing of the DN are enforceable

 

S69 Interest, strong case for it not to be allowed.

 

As the acknowledgement of the claim advising intention to defend is not being sent SD by me until tommorow (mon) i am wondering if i have a very little chance of success whether i would be better sending an admission of partial claim agreeing the two credit card debts but disputing their right to apply s69 interest.

 

The decision is yours but if it was me, there would be no question of my giving this one up!

[foolishgirl]

As the POC is such rubbish - doesn't cite the kind of agreement (other than to say credit card), how they have arrived at the sum claimed etc. + the stat. interest issue, I would be tempted to put in a short embarassed defence (eg. courtesy of pt) & a letter to the sols. asking them to plead properly or get off your case.

 

However wait for the 7 days to give them chance to respond to your CPR31.14 & 18. You have 28+postage days from issue of claim to submit your defence. Do not sign the copies you send to the sols (print) & make sure your sig. goes thro' the dotted line on the court copy (if you mail it in) to avoid the possibility of copying & pasting Send all Rec. Del.

 

 

In the Northampton county court

(CCBC)

Claim number *********

Between

 

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

 

And

 

************* - Defendant

 

 

Defence

 

 

 

 

• I, ********** of ************** make this statement as my defence to the claim brought by **************
  
• The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system
  
• No documents supporting the claims in the particulars have been offered and despite a request to the claimant for further information none has been forth coming and as a result I cannot plead in defence to the claim
  
• The claimant pleads that the claim is brought in respect of credit card accounts that would by their nature, be defined as regulated credit agreements regulated by the Consumer Credit Act 1974, yet the claimant claims statutory interest which the claimant should surely know it is not entitled to by virtue of the County Courts (interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) in particular section 2 (3) which expressly prohibits such an award.
  
• Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit
  
• The defendant is unable to plead effectively or at all. The defendant is embarrassed.
  

 

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

 

 

 

Letter to Morgans

 

Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead yor clients case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR rather than the Northampton county court regime.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided.

Edited March 7, 2010 by foolishgirl
typo

[foolishgirl]

Foolishgirl suggested sending a short embarrased defence to Northampton and copied to Morgans due to the limited POC on the claim form in her Post No.88 where she posted up the sample letters to send. These letters have now "disappeared" from her posting!!

 

Those letters are still there volvo but you would be wise to take pt's advice:

 

am i talking to myself?

 

Request the documents they have mentioned in their statement of case

 

Write to them and ask for an extension SEE CPR 15.5

 

get disclosure then defend, do not file a defence if you cant plead as you lose the ability to challenge them on this, if you defend you are taken to have understood the claim against you and therefore have accepted the pleadings are sufficient

[foolishgirl]

No response from Morgan (Cabot) for CPR31.14 and CPR18 request sent on 8th March 2010 or CPR15.5 extension request sent 11/3/10.

 

 

Give 'em chance! It's only the 15th.

 

pt is suggesting going for straight for a strike out without submitting a defence on the grounds that they you can't (i.e. no info) & that they haven't complied with CPR31.14 (if they don't) but you would have to make sure that that was submitted before the 29th so how long did you give them to comply with the CPR31.14?

[foolishgirl]

 

I sent the CPR request letters you gave me to Morgans, CPR31.14 requested 7 days and CPR18 was 14 days

 

Do you have a letter for requesting strike out etc assuming they do not respond.??

 

Just trying to get everything ready in case they do not answer and bearing in mind i have got to post to the court as the claim number and password still wont accept online so this will shorten the time i have available. (Did speak to the court but they were unhelpful regarding online access.)

 

 

And your CPR15.5 request was the 11th - corrrect? So you need to give them 7 clear days (i.e. +postage) to be seen to be reasonable before you start firing off applications. Did you send them Rec. Del? If so you can check online what date (print out the receipts) they were received & work out 7 days + postage days return for an ETA of repsonses.

 

You have to make a formal application (def. not letter to the court!) for a strike out on a N244 stating (on a seperate sheet) your reasons why you think it appropriate. The form is here:

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

 

Don't panic about the time - as long as you send by Spec. Del. on 27 March, it will get there by 29th. We are only on the 16th - you have nearly 2 weeks. Update your thread next weekend with responses, if any:rolleyes: & you will get more help then.

[foolishgirl]

I phoned them as you suggested on 18/3/10 in which they verbally confirmed the time for submission of my defence being extended to 28/4/10 and that they would confirm this in writing that day and also advise how long disclosure would take them.

 

Did they confirm in writing?

 

Did you write to the court & tell them that this is what had been agreed with the Claimant?

 

As i will be away on hol in Germany very soon, I was wondering how i should now proceed. You had been talking of requesting a strike out, if this is the case how do i go about this?

 

You can't apply for a strike out until after the 28/04 if you have confirmation that is what you agreed. If you do need to go for a strike out you make the application on a Form N244. It costs £75.00

 

FG

[foolishgirl]

No templates Volvo, each case is individual.

 

You state in Part 3 what you are applying for & under which CPRs etc. & then in Part 10 (use a seperate sheet if necessary but make sure your claim no. etc is at the top) you expound as to why you think the court should make the order. (You refer to yourself as the Applicant (not Defendant) on the form)

 

Don't forget to add a clause that the claimant pay the costs of the order. You will also need to send a copy of the letter you sent/rec re. the agreement as to defence deadline etc.

 

If you need further help when it gets closer to your deadline, shout...

[foolishgirl]

A reminder note to Morgans should definitely help any applic. for strike out on the grounds of non-compliance. Send asasp - give them until next Monday. If they haven't responded by then, suggest you submit your strike out applic. on the Tuesday. If you don't get it by 28th, you will have to inform the court re. defence submission or they may get judgment by default.

 

Is this with your local court or Northampton?

[foolishgirl]

Strike out

[foolishgirl]

I agree with gh, volvo.

An applic. should ask for one thing or related things, it shouldn't offer an either/or option.

[foolishgirl]

Post up a draft if you want any help checking it over before you send it volvo.

[foolishgirl]

IMO you need to enter a statement based on the embarrassed defence I posted earlier on, eg:

 

1. The Claimant's particulars of claim are vague and fail to disclose any cause of action. They appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

2. The Defendant wrote to the Claimant on xxx requesting that

(a) they submit a new properly particularised claim

(b) they supply the Defendant with copies of any documents on which they had based their claim (this request made under CPRxxx)

© they agree to a 28 day extension for a defence to be submitted

 

A reminder letter was sent to the Claimant on xxxxx

 

To date the Claimant has failed to repsond to any of the above

 

As a result the Defendant is unable to plead effectively or at all. The Defendant is embarrassed.

 

4. Furthermore the Claimant pleads that the claim is brought in respect of credit card accounts that would by their nature, be defined as regulated credit agreements regulated by the Consumer Credit Act 1974, yet the Claimant claims statutory interest which the Claimant should surely know it is not entitled to by virtue of the County Courts (interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) in particular section 2 (3) which expressly prohibits such an award.

 

5. An application was made by the Defendant to xxx County Court on xxx. To date the Defendant has not received notification that this application has been considered or is likely to be considered imminently.

 

6. It is repsectfully requested that, if appropriate, the Defendant be permitted to offer an amended defence folowing consideration of the application & subject to the Claimant supplying the requested documentation upon which they have based their claim.

 

6. Without clarification of the Claimants claim, the Defendant is extremely disadvantaged and the Claimants claim appears without merit

[foolishgirl]

The claim needs to be pleased properly before you answer it - para 4 is trying to answer a point by adding in info that should be in their POC in the first place.

 

You're right gh, well spotted.

 

Leave it for the next leg, volvo.

[foolishgirl]

I don't know what you put as your reasons for the strike out so can't comment.

 

Can you post up copies of the agreement please (minus personal details)?

 

Of course the DN is required if they are asking for full balance.

 

CE compliance just means that they comply with WS & provide Witness at hearing if required to (but note you could be liable for costs of such). Wait & see what you need first.

 

You now need to go through all those statements & check for unlawful & unexplained charges. Have you ever claimed anything back?

[foolishgirl]

Thanks volvo, found the applic. form. IMO they will struggle with this.

 

Do wish the courts would all play by the same fee book. I really can't work out why some courts seem to charge you £75 & others £40 but you're in pocket volvo, so don't worry.

[foolishgirl]

The SO applic. looks OK volvo.

 

IMO gh's advice stands. You need to attend the hearing, state that the Claimant has now supplied some info. under a CPR18 request but has failed to amend his pleading to reflect the particulars of the claim & you are unable to offer a defence if you are not aware of exactly why & what the Claimant requires in respect of each debt under the claim.

 

Aswell as the amended POC, you could also try asking for directions from the DJ that

 

1. an original agreement be produced to the court (remind him of CPR16(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, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

and also the Money Laundering Regs that require a business to keep originals of documents for at least 5 years beyond termination of the business relationship.

 

2. a copy of the DN be produced with proof of posting

[foolishgirl]

If you are required to attend, the case will probably be transferred to your local court.

[foolishgirl]

Give 'em chance volvo - you only applied last week.

 

Early days for preparing a defence & exactly what are you going to say when the POC does not identify the claim properly??

[foolishgirl]

Don't worry volvo.

 

Northampton are usually on the ball. Have you contacted them to make sure the applic. was received? If not, phone & explain the situation & ask that it's dealt with asap.

[foolishgirl]

Give it a few days then volvo - plenty of time...

[foolishgirl]

You could try phoning or writing to the court manager at Rugby requesting a transfer stating your reasons for so doing. However if you get no success with the informal route, you will have to submit another application to get a transfer.

[foolishgirl]

Surely, as the letter was from Northampton, it is Northampton stating i may appy with CPR23.10 to vary their transfer of case to Rugby etc.

 

Wouldnt you agree that the letter should go to Northampton. I have not received anything from Rugby regarding a hearing date yet.

 

 

Sorry volvo, thought the case had already been transferred. If it's just a letter of intent from NTH, yes, apply to NTH.

[foolishgirl]

Nothing received from Chester CC yet about a date, Will my original N244 request suffice or will I need to submit anything else for this strike out i have requested.

It should be in your file but phone Chester on Mon & make sure they have received it & that they will put it in front of a DJ asap otherwise it may get overlooked.

[foolishgirl]

Westcots doc is not a DN, it's a formal demand - it says so quite clearly at the top of the notice & refers to a previous DN.

 

IMO the DN issued by Mercers does not seem to comply with Regs in format & in order to prove their case based on this DN they would have to also produce pop & proof that you had not rectified the account at any time since 2000.