RBS Mint Loan - Court Action Started & Dodgy DN issues

[gh2008]

Also have a hunt for posts by BankerRhymesWith he has some excellent posts re DNs There is also a good one by X20

 

Once I've finished deleting hundreds of tab marks and extra spaces I'll hunt them out

[gh2008]

ok, all I've really done is sort out the formatting and edited upto 14

 

I need to get on with something for a couple of hours so I'm posting it back here

 

All the changes have been tracked (that's why the doc is big - you can remove the tracking if you are happy)

Defence Version 2 (1).doc

[pumpytums]

I believe cabot recently tried it on by reducing the credit limit to zero and then claiming the outstanding amount was arrears. Easy to defend but for an judge unfamiliar with such things, possible to hoodwink.

 

Pumpytums

[Pumpkinhead]

But surely termination automatically happens when they demand the full balance?

 

With the case of an invalid DN in particular, when the debtor is denied the ability to make (monthly) repayments, isn't it the case that the OC has breached one of the terms of the original agreement?

 

Sorry about all those tabs ...............

[gh2008]

But surely termination automatically happens when they demand the full balance?

 

With the case of an invalid DN in particular, when the debtor is denied the ability to make (monthly) repayments, isn't it the case that the OC has breached one of the terms of the original agreement?

 

Sorry about all those tabs ...............

 

Yes, yes and don't worry I'm no expert on Word but i use it a fair bit.

 

The creditor does not need to explicitly terminate, they can do it by deed i.e. their actions, demanding early repayment of sums not yet due is one. By their actions they are showing that as far as they are concerned the agreement is at an end.

 

DiddyDicky made a very good post about the Law allowing lawbreakers in this instance in case they bleat on about the termination wasn't real because they were not allowed to do it.

[gh2008]

some links http://www.consumeractiongroup.co.uk/forum/legal-issues/242517-storecard-claim-served-what-9.html#post2830927

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2343485.html

[Pumpkinhead]

Ha, ha. That last thread's mine that you helped me with Gh

[gh2008]

hmm

 

forgot about that still, maybe a good omen - you won that one

[citizenB]

You seem to be in good hands Pumpkin.

[Pumpkinhead]

GH - Have made a final check through of Defence with your amendments and made just a few minor changes.

 

In your opinion is there anything else that needs changing/adding or deleting before I take it to the Court tomorrow?

Defence Version 2 (1).doc

[gh2008]

had a quick read - looks fine to me

 

to edit the header (with the claim number) click 'view' then 'Header & Footer' then you can edit it and then click close.

 

gh

[Pumpkinhead]

Dropped my Defence down to the Court on Monday and got a stamped receipt.

 

Today (Weds) have received a "Notice that a Defence has been Filed" (mine I guess) together with an AQ which has to be completed and returned by mid July.

 

I guess the Claimant would have received these same documents today also.

 

How will I know if and when the Claimant returns their AQ?

 

I've not reached the AQ stage before.

 

Any suggestions on what I should do now?

[gh2008]

The AQ stage is normally the first time a DJ will have a look at the case and decide how the Court will best hear the case.

 

It is also the ideal time to 'flag up' anything that you think the Claimant should do before trial.

You can also ask the Court to make an Order for Directions or even ask them to Strike Out the claim.

 

Is it an N149 or N150

 

Have a search about using those search terms and see what you come up with. There is also a sticky by PT with a good solid foundation AQ

[Pumpkinhead]

It's an N150.

[Pumpkinhead]

Just working on putting the AQ together. Having read up I see that the Court is proposing this case is allocated to Fast Track as they have sent me an N150 and I reason this is because the amount is over £5k.

 

The amount in dispute is only just over the £5k mark, and relates to a fixed term loan which I think means that if I lose the case and have to pay up I would get a rebate of approx £500 by settling before the end of the loan term.

 

I note that I can ask for voluntary referral to Small Claims Track and wondered if there is any real benefit in doing this?

[gh2008]

If you have a solid defence that you are comfortable with and can deflect all the rubbish that may be thrown at you (McGuffick, Carey & Rankine for starters) then Fast Track will benefit you.

 

The whole thing is much more strict and if they are asked to disclose a document they have to do it, rather than SCT where it is all 'very fluffy'

 

The risk is costs, SCT they should be negligible however lose in FT and you could be looking at £5k-£10 in costs.

Saying that though if you win you can claim your costs.

 

If the other side is not confident they are no more likely t bow out unless you get representation and then obviously FT opens them up to costs.

In FT you may be able to get representation on a no-upfront-fee basis if you have a strong case.

[Pumpkinhead]

I don't like the sound of the possible costs if I lose on FT. On that basis alone I would prefer to have it allocated to SCT. Do you think it likely that the DJ would accept this?

 

Also I am thinking about using the AQ as an opportunity to ask for the claim to be struck out on the basis that the Claimant has no right of action. Do you think this is a good idea?

 

Apart from filling in the N150 do I need to put other documents together?

 

Also the AQ asks if I have complied with the relevant Pre-action protocol (Section C). I'm not sure what this means so don't know whether to answer Yes or NO. Any ideas

Edited July 10, 2010 by Pumpkinhead
extra sentence

[Pumpkinhead]

Have now attached some information on my proposed AQ. Would appreciate any help available.

 

Proposed Answers for Allocation Questionnaire

 

 

A Settlement

1. Given that the rules require you to try to settle the claim before the hearing do you want to attempt to settle at this stage? NO

 

4. If you answered No to Q1, please state below the reasons why you consider it inappropriate to try to settle the claim at this stage. Reasons: The Claimant has no right of action.

 

B Location of Trial

Is there any reason why your claim needs to be heard at a particular court?

As the claim has already been transferred to my local court I am planning to answer NO to this question.

 

C Pre-action protocols

You are expected to comply with the relevant pre-action protocol. Have you done so? I don’t understand what this means so don’t know if I have done it or not.

 

D Case management information

What amount of the claim is in dispute? I was planning on entering the total sum of the claim as I dispute all of it – is this the right thing to do?

 

Applications

Have you made any applications in this claim? I am planning to use the N150 to ask the DJ to strike out the claim, so this isn’t strictly an application is it?

 

Witnesses

I’m planning on just putting my name in here as the defendant.

 

Experts

Not planning on asking or using any experts or expert evidence.

 

Track

I do want to ask for Small Claims Track as opposed to Fast Track. The reason I will give for this is that the case is straightforward and the claimant has no right of action.

 

E Trial – Straight forward bit

 

F Proposed Directions

Do I need to create any proposed directions in relation to my request for the DJ to strike out the claim.

 

Other Information

I intend filling in this bit to ask the DJ to strike out the claim and give reason why, basic summary of case etc.

 

 

Also, do I have to get the Claimants agreement to move case to SCT?

[Pumpkinhead]

I've been reading up on various threads about AQs and am wondering now whether I should in fact say Yes to Question A about do you want to attempt to settle at this stage.

 

Reason for my possible change of mind is awareness of the need to be seen to try and resolve the issue. From my point of view settling would consist of me paying the genuine arrears and the rest being written off. What do you think?

 

I only have a couple of days left in which to finalise the AQ. What do you think about my idea of applying on the AQ for a strikeout.

 

I keep meaning to ring the COurt to see if other side have submitted their AQ yet but just not had chance. However, today I received an N434 Notice of Change of Solicitor, so I guess they are still ploughing ahead. Perhaps they decided the original solicitors were muppets??

 

Really, really need your comments on my AQ guys!!!

[Pumpkinhead]

Bump Bump

 

Please, please, please can someone help. I have to get my AQ in tomorrow.

[Undercover-Elsa]

Time to hit the red triangle I think and ask the site team for help.

So sorry, it's not my area of expertise, unfortunately.

I think CitizenB is online, she's really good at Court issues.

 

Elsa x

[citizenB]

Just having a read to see where you are at.

[Undercover-Elsa]

Bless you

[citizenB]

Have now attached some information on my proposed AQ. Would appreciate any help available.

 

Proposed Answers for Allocation Questionnaire

 

 

A Settlement

1. Given that the rules require you to try to settle the claim before the hearing do you want to attempt to settle at this stage? NO

I would say YES to this, it looks good for you, especially if the other side say no

 

4. If you answered No to Q1, please state below the reasons why you consider it inappropriate to try to settle the claim at this stage. Reasons: The Claimant has no right of action.

 

As you are likely to be changing this to yes, then you dont have to put anything here.

 

B Location of Trial

Is there any reason why your claim needs to be heard at a particular court?

As the claim has already been transferred to my local court I am planning to answer NO to this question.

This is correct, if you are at your local court already you dont want it shifting.

 

C Pre-action protocols

You are expected to comply with the relevant pre-action protocol. Have you done so? I don’t understand what this means so don’t know if I have done it or not.

I dont think there are any pre action protocols for you to follow. I will seek out the correct wording for you.

 

D Case management information

What amount of the claim is in dispute? I was planning on entering the total sum of the claim as I dispute all of it – is this the right thing to do?

Yes, the full amount being claimed is the sum that will be in dispute

 

Applications

Have you made any applications in this claim? I am planning to use the N150 to ask the DJ to strike out the claim, so this isn’t strictly an application is it?

Unless you have or intend to put in a proper application for a strike out or other application then the answer will be NO.

 

Witnesses

I’m planning on just putting my name in here as the defendant.

Just you , witness to facts

 

Experts

Not planning on asking or using any experts or expert evidence.

Then NO will be the response to this one

 

Track

I do want to ask for Small Claims Track as opposed to Fast Track. The reason I will give for this is that the case is straightforward and the claimant has no right of action.

 

Yep, that could help get it shifted down to SCT, it is entirely down to the Judge though.

 

E Trial – Straight forward bit

 

F Proposed Directions

Do I need to create any proposed directions in relation to my request for the DJ to strike out the claim.

 

Other Information

I intend filling in this bit to ask the DJ to strike out the claim and give reason why, basic summary of case etc.

 

 

Also, do I have to get the Claimants agreement to move case to SCT?

 

The track allocation is down to the Judge as far as I know. If I understand correctly, until the court gets the AQs back then the claim is still trackless.

 

 

F and other information, I am not too sure of, so will try and seek out some advice on those for you.

[citizenB]

Have flagged the post up for site team attention in respect of the two questions I was unable to answer.