D/judge Made Wrong Decison What Now??

[creditcardmug]

Print off copies of the last two posts to attach to the AQ, fill in the xxxs in the directions, but not the dates.

 

Take it to the court office , ask them for a receipt, also ask whether the other side has filed theirs, if they have ask for a photocopy

[hammyhound]

Just subbing this excellent thread as I will be in the same boat soon and will also use what Creditmug has posted for my defence.

 

HH

[creditcardmug]

Just subbing this excellent thread as I will be in the same boat soon and will also use what Creditmug has posted for my defence.

 

HH

 

Thats fine as long as all the details are exactly the same.

 

Do you have a thread on your claim?

[hammyhound]

Yes,

 

This is my thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/196240-claim-form-received-help.html

 

Will update on it when I need to file my defence.

 

Thanks.

 

HH

[Mydogsawestie]

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(d) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

 

Thanks CCM can you just confirm the dates I should be using in here are the 11th May (when the alloc questionnaire has to be back by) also is it ok for me to pad this out a bit mentioning the relevant acts of parliament they each refer to (which I can copy & paste from my full defence since I only had 800 words on the MCOL that time). Or better still can I include my FULL defence relating to this information? Also is it worth attaching proof of my CPR letter requesting the said information too. I like to go in fighting and read somewhere that A well written draft order for directions can also demonstrate a good knowledge of relevan case law and it can be a factor in persuading a claimant that it is not worth paying more money to continue?

 

Other Information

Section I

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 fast 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 these documents must be disclosed before this case can progress any further

 

I also had a faulty DN shall I mention what I have also come across in addition to the above about this too just after where your paragraph ends in enforcement order?

 

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). Failure of a default notice to be accurate not only invalidates the default notice (Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1 9 9 8) but is an 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)

 

Copies of statements are necessary to establish the alleged balance on the account, to establish the percentage of the balance caused by unfair terms under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding on the defendant, and to establish whether or not the defendant is indeed indebted to the claimant to any degree. My previous request for this necessary information has been ignored.

 

These documents are also necessary to determine the true balance on the alleged account at the time of default and termination. If the balance quoted on the default notice should be inaccurate to a degree greater than de minimis, either by the levying of unlawful charges deemed unfair under the Unfair Terms in Consumer Contracts Regulations 1999 or any other reason, then the default notice is rendered invalid as per Woodchester v Swayne & Co [1998] EWCA Civ 1209.

 

Its is respectfully requested this case be allocated to the small claims/fast track (edit accordingly), 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 these documents must be disclosed before this case can progress any further.

Edited May 3, 2009 by Mydogsawestie

[creditcardmug]

Hi, yes you can put as much as you want in to the other information, but i suggest you leave the draft order as is.

 

Just to reiterate, in the draft order, dont put any dates in, the judge does that, just fill in the xxxs

[Mydogsawestie]

Cheers for that, just want to state all I can to show the ground work from many an hour on here has been put in as so to speak!!

 

Couple of other quick questions before putting the finishing touches to it, in Witness section where I am putting myself (& my name of course) my husband will be with me too so shall I put (& husband = 1)

 

Also you mentioned......

 

Section H leave blank?

 

This is my last section so I take it I should apply the next section i bit you mentioned here....Section I tick yes to the 1st question...no to the second

tick no to applications and in the big box write "please see attached section I"

 

Therefore I take it I am not sending a copy to the other side (less signature) (wasnt sure whether to y'see?)

[creditcardmug]

Section H is the fee, you dont pay the fee, the other side do, so leave blank

 

Section I You write "please see attached section I" and you attach the draft order and other info

 

No dont send a copy to the other side, they wont bother sending you a copy of theirs either

 

Witness section int he first box write "myself" in the other box write "all facts", no you cant include hubby as a witness, if you want him to be at the hearing you have to apply to the court separately for him to be a macenzie friend, but he wont be allowed to speak.

 

You have to apply separately again for him to be able to speak

 

All this is assuming there is a hearing

 

Try to keep the other info clear and concise, not rambling, otherwise the judge might not bother reading it.

[creditcardmug]

Just a few points to help you understand what you are trying to achieve with this AQ.

 

The judge will look at your AQ, and theirs and in particular the draft orders, and will decide what order to make.

 

From your point of view the ideal outcome will be that he makes the order as in your draft directions, if that happens, then they will have to comply completely with it, something which wont be easy for them, however if they do, then you will have a further 4 weeks to produce a fully particularised defence, based on the documents they will rely on at the hearing, and which they will not be able to change or add to.

[Mydogsawestie]

Section H is the fee, you dont pay the fee, the other side do, so leave blank

 

Section I You write "please see attached section I" and you attach the draft order and other info

 

 

Thanks for the info it has all thoroughly soaked in now. Re the Section H, there is nothing mentioning any fee on my pages though as section H for me is Other Information so will apply what you mentioned here on this missing section i and inc all the attachments too....

[creditcardmug]

Ah, right, there were two different versions of the N150, i think that's where the confusion is...you might have to type up the headings, just to be sure you have the answers the right way round...for instance you might have s. H for other info, and s. I for directions?

 

But i think you have the jist of it:)

[creditcardmug]

Best way to check, go to the HMCS website click on forms, the type in N150, you will get a pdf of the form im refering to with my answers, you can work it out from that

 

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/FormFinder.do

[Mydogsawestie]

Best way to check, go to the HMCS website click on forms, the type in N150, you will get a pdf of the form im refering to with my answers, you can work it out from that

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

 

How weird that my N150 slightly differs from the hmcourts website one...ah well, there is nothing like keeping us on our toes eh......

[creditcardmug]

[Mydogsawestie]

Hi CCM when you posted that link to that other N150 form http://www.hmcourts-service.gov.uk/H.../FormFinder.do under the section c (Pre-action protocols) you mentioned to put NO and to put this case is not covered by any approved protocol.

 

As my N150 is different (which we've now determined) it says the following under Pre-action protocols:-

 

If an approved pre-action protocol applied to this claim, complete Part 1 only, if not, complete part 2 only. If you answer NO to the question in either part 1 or 2 please explain the reasons why on a separate sheet and attach it to this questionaire.

 

Part 1 (please say which protocol)

The xxxxxxxxx protocol applies to this claim

Have you complied with it? Yes or NO

 

Part 2 No pre-action protocol applies to this claim.

Have you exchanged information and/or documents (evidence) with the other party in order to assist in settling the claim? Yes or NO

 

Am I still putting NO to the Part 2? then on a seperate sheet I have to put my reasons why? (what would they be?) its just that it says have you exchanged information and/or docs (evidence) with the other party in order to assist in settling the claim and I did send a letter to MBNA offering a settlement in Dec that Restons are aware of too!

 

Other than that, its all ready to take to court now..what do y'think?

[creditcardmug]

If you have requested info under the CPR, then you can put it in here i.e.

 

" This case is not covered by any approved protocol, I have tried to act reasonably in exchanging information/documents relevant to the claim, however the claimant has been unco-operative.

On the DATE I wrote to the claimant requesting information pursuant to the CPR Part ??, in order that I could investigate their Particulars of Claim, and file a suitable defence. A copy is attached to this form.

 

The claimant has not replied"

 

 

Something like that i suggest, or if they have replied, but not to your satisfaction, then say so here.

 

 

Obviously you type this out on a separate sheet and attach it etc.

[Mydogsawestie]

Superb....thanks ever so much

[Mydogsawestie]

Hi CCM, rang the court today to see if the other side had filed there AQ yet, they advised me it seems they have applied instead for Summary Judgement with a hearing date in July been set! She said they obviously dont think I have a strong enough case???? and I should have the paperwork any day.

:mad::mad::mad::mad:

[creditcardmug]

Hmmm, i was afraid they would, read up on the other mbna/restons threads, i will be of limited help to you now, as i haven't done one of these myself.

 

They will send you a witness statement among other things, which will aim to trash your defence, and have it struck out, you will also have to do a witness statement.

 

You have filed your AQ i presume?

[Mydogsawestie]

Hmmm, i was afraid they would, read up on the other mbna/restons threads, i will be of limited help to you now, as i haven't done one of these myself.

 

They will send you a witness statement among other things, which will aim to trash your defence, and have it struck out, you will also have to do a witness statement.

 

You have filed your AQ i presume?

 

Yes it went off today special delivery. As did not want anything striking out if I didnt. I inc C pre-action protocol, Draft for defence, Other information, and a copy of my FULL defence. Is there anything I can raise myself right now before this thing lands on my doorstep in order to play them at there own game?

[creditcardmug]

You have had advance notification that they have made an application to the court, you will have to wait for their witness statement to arrive, before you can defend against it

[Mydogsawestie]

You have had advance notification that they have made an application to the court, you will have to wait for their witness statement to arrive, before you can defend against it

 

Sleeves rolled up ready and waiting

[Mydogsawestie]

This week, I have received by court & Restons a notice of hearing for July on what looks to be an N244 form. How crafty Restons posting this on the 11th May (the date I had to file the AQ by which I stated I had requested on 24/02/09 info to CPR part 31.14 etc etc for a copy of the agreement & default notice be supplied within 7 days & my request had been ignored.

 

I now have a copy in what they have sent me (all being an application form copy done on a priority request tear off form at the bottom kind of thing) with my signature on, and on the back of this they copied me the Financial & Related conditions it "may" have referred to and so NONE OF THE PRESCRIBED TERMS are on the same part as my signature! They also have enclosed a copy of "latest" not orig terms & conditions effective in June 2008.

 

Also they have enclosed a copy of the Default Notice not as per the orig issued to me but one with different no's on (in no relation to mine) altho dates/amount are the same but font stylings differ too!!!!

 

They only have disclosed statements from 2004 NOT from when it was opened in 2000 and in my Draft Order for Direction it was stated I needed a full and complete statement of account inc all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case. (and SO WHERE ARE THESE?)

 

They also put in there defence that they have made reference to my defence by disclosing there obligation to my CPR31.14 request by sending me a copy of "terms & conditions & copy Default notice" (which they did in March but not my orig's hence me continuing down this road) and that the Claimant is under no obligation to provide a copy of the Original signed agreement or terms & conds as per the combined effect of Regulations 7 & 11 of the Consumer Credit (Cancellation Notice and Copies of Documents) Regulations 1983. They therefore have complied with my obligations under the CCAct (or Regulations made under it).

 

Any pointers for the next step re amended defence/Witness Statement timescales I need to work on now guys would be a Brucy bonus again.. cheers.

Edited May 17, 2009 by Mydogsawestie

[Gazza112]

Subbing with interest

[Mydogsawestie]

You have had advance notification that they have made an application to the court, you will have to wait for their witness statement to arrive, before you can defend against it

 

Hi CCM hope you can help me as to what I have rec'd above, just wondering what timelines now to do things in ie...should I do the N244 that I have come across in pt's thread http://www.consumeractiongroup.co.uk/forum/legal-issues/134001-suggested-letter-where-claimant.html or should I be leaving it till nearer the time. Its just that I have found some Witness statements today to chop & change to my own paticulars but wondering if this is something I should be doing just yet