un1boy - N1 issued for breach of CCA request

[un1boy]

This is just typical of the kind of cr** going on

 

I had a case where I entered judgement, because it was with an element of "at courts discretion" they fast tracked it

 

Some months later, the Defendant applied to be able to set aside judgement and enter a Defence - it was allowed!

 

It seems as you say the banks just push everything to the limit and know the courts will allow them more time (mainly under the "overriding objective" rule)

 

I have a similar thing going through soon that I cant talk about at the mo, but I'll eat my hat if my prediction is wrong

 

And if I'm right I will well and truly throw my toys out the pram

 

I have thrown my toys out anyway, it's disgusting - I told the court manager that would happen and when he called me back I just, "I told you so!"

 

I asked what he was gonna do about it and he just said, "I can't do anything - it's a Judges's decision"

 

I said, well can you tell me why my POCS weren't even read and why the Judge originally ordered a stay when the defedant had defended my claim completely differently to anything in my POCs? And, why although the defendant is a multi billion pound company they were awarded another 28 days to enter a new defence and a further 7 days extension? He said, "No, can't" i also pointed out that I was a litigant in person and have managed to do everything properly and that if they were suing me, the court would not allow me to get away with treating the defendannt or court with such contempt.

 

I have asked for a full review.

[un1boy]

I think they took your letter as an objection. there are valid reasons why someone would not want them combined together, especially cost implications, since doing so may bump the claim up from small claims to fast track, or fast track to the dreaded multi-track.

 

I don't think I quite understand your post, sorry.

 

It is the bank that have rqeuested the collaboration of both claims. I received an applcation request and an order saying that there was a hearing booked and it was going to be on a conference call basis.

[tomterm8]

I don't think I quite understand your post, sorry.

 

It is the bank that have rqeuested the collaboration of both claims. I received an applcation request and an order saying that there was a hearing booked and it was going to be on a conference call basis.

 

If, say, you are suing them for 3,000, and they are suing you for 2,500, both cases would be heared in the small claims track. The costs would be very limited. If both cases were then heared on a combined case, it might be enough to bump up the complexity / monetary value of the case to the next tier up... fast track... the two small claims cases would involve substantially lower cost awards to the losing side than a single fast track court case.

 

In your case, your argument seems to be that they have no hope of winning their claim...

[un1boy]

If, say, you are suing them for 3,000, and they are suing you for 2,500, both cases would be heared in the small claims track. The costs would be very limited. If both cases were then heared on a combined case, it might be enough to bump up the complexity / monetary value of the case to the next tier up... fast track... the two small claims cases would involve substantially lower cost awards to the losing side than a single fast track court case.

 

In your case, your argument seems to be that they have no hope of winning their claim...

 

Ok, I get it.

 

That is partly my argument: Do you think it's worth me sending a letter to the court stating the requirements of sec 78, 60, 61 and 127(3) and maybe asking for an order to be made, as any hearing really is a waste of time.

 

I could also include reference to some of Mrs. Wilson's cases?

[un1boy]

This is what I want to send, all any comments greatefully received:

 

I am writing with reference to the order made 6th November 2007 in which the defendant was given a further 7 days to enter their defence.

I would like to request for the order be struck out and apply for permission to issue judgment against the defendant for the following reasons:

• The defendant failed to issue a valid response during the first 28 days they are entitled to
  
• The claim was stayed in error and the defendant was given a further 28 days to enter another defence
  
• The defendant failed to enter their defence within the second 28 days granted
  
• The defendant, whom has qualified legal representation, has failed to enter a valid defence even though having a total of 56 days to do so.
  
• The defendant has entered an application request to have another claim collaborated with this one: both claims are separate and I have written evidence from the defendant stating that the other claim is not covered by the Consumer Credit Act 1974 (as amended) (“The act”).
  
• Section 78(1) of the act states:

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

The defendant has failed to supply a copy of “any other document referred to in it” by not supplying a copy of the original terms and conditions, which Trading Standards have confirmed is an offence.

They have also failed to supply the documentation required under paragraphs (a),(b) and ©.

I have been in contact with the defendant for over 12 months trying to resolve the situation without involving the courts; they have ignored all of my letters since February 2007.

The defendant has been unlawfully enforcing the agreement since the Claimant’s request in August 2006, despite the requirements of section 78(5):

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

Furthermore, I would politely request that an order is made in favour of the Claimant due to the fact that the defendant has failed to supply an agreement which complies with section 60(1) and section 61(1)(a) of the act. Therefore, under section 127(3) the court is prohibited from making an enforcement order against the Claimant:

127 Enforcement orders in cases of infringement

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

My request for judgment is to save all parties time and costs.

I have only asked the court to intervene as all other attempts to resolve it with the defendant have been exhausted.

[un1boy]

*bump* for the above please

[un1boy]

Ok guys, I'm putting the letter on the previous page in the post tomorrow!

[lookinforinfo]

I suspect the reason noone has offered any suggestions is because they feel

you have pretty much covered all the bases yourself. Send the letter and

hope that the Judge who reads it will act on it.

[pt2537]

Hi un1boy

 

concur with LFI , not much more you can really add.

 

regards

paul

[privatetenant]

Subscribing, Good luck. Waiting with baited breath for the outcome.

[un1boy]

Cheers fellas.

 

I am going to fax it to the court tomorrow.

 

I'll let you know how it goes!

[Penfold92]

Hi Un1,

 

I have read this thread with interest now. You are taking on the bulls and I totally understand where you are coming from. I have done the same (very different POC's, but along similar undertones...)

 

http://www.consumeractiongroup.co.uk/forum/general-debt/111018-penfold-barclays-woolwich-no.html

 

http://www.consumeractiongroup.co.uk/forum/general-debt/78025-natwest-rbs-help-advice.html

 

The main thing is they have no defense. They will throw all sorts to make you doubt yourself and your claim. Hold firm and remember that the judge (as much of a pain as it is) has to allow the defense as much time as they can. It just appears that is the way all these sols work and the courts let them get away with it. How wonderful for you though if you ever get to court to say "well they have all this time and still have come up with nothing..."

 

Good luck,

 

Penfold

[un1boy]

Hi Un1,

 

I have read this thread with interest now. You are taking on the bulls and I totally understand where you are coming from. I have done the same (very different POC's, but along similar undertones...)

 

http://www.consumeractiongroup.co.uk/forum/general-debt/111018-penfold-barclays-woolwich-no.html

 

http://www.consumeractiongroup.co.uk/forum/general-debt/78025-natwest-rbs-help-advice.html

 

The main thing is they have no defense. They will throw all sorts to make you doubt yourself and your claim. Hold firm and remember that the judge (as much of a pain as it is) has to allow the defense as much time as they can. It just appears that is the way all these sols work and the courts let them get away with it. How wonderful for you though if you ever get to court to say "well they have all this time and still have come up with nothing..."

 

Good luck,

 

Penfold

 

Hi Penfold,

 

Thanks for your post.

 

I just think that this should be done automatically - the courts shold automatically ask to see the docs before any legal action can be taken - afterall, as you say, they actually have no defence at all.

 

I just can't afford the time or costs it is and has cost me already, let alone the time etc to go to the court. I have a phone conference hearing, apparently.

[Having_A_Knightmare]

I have a phone conference hearing, apparently.

 

How did you get one of these??

[Penfold92]

How did you get one of these??

 

More courts are doing this now especially with the Banks. I had one for lifting the stay on my HSBC case. It was ok, but I would have preferred to look the defence in the eye...

 

As for the system Un1, it is weird, but it appears in this country you are guilty unless to defend... But if you are attacking a bank....well then you are not right unless they have been given every opportunity and then some...LOL

 

Penfold

[hisholinessthepope]

Uniboy, I went to court with NEXT and arrived for a hearing to learn that NEXT were by telephone. I was mad as hell that I had gone to the court and they "were off the hook" on the telephone.

 

However I was at a huge advantage. You get to see the judges face and read their body language. If you mess up you see it on their faces and can stop talking! The guy on the telephone has none of this.

 

If you can attend, I would advise you do!

[un1boy]

Uniboy, I went to court with NEXT and arrived for a hearing to learn that NEXT were by telephone. I was mad as hell that I had gone to the court and they "were off the hook" on the telephone.

 

However I was at a huge advantage. You get to see the judges face and read their body language. If you mess up you see it on their faces and can stop talking! The guy on the telephone has none of this.

 

If you can attend, I would advise you do!

 

Thanks.

 

I would like to attend in person, but the order says it's a telephone conference - I might ask for a hearing in person and say that I am not confident on hte phone....hehe

[Penfold92]

That would be a good move as they would also need to turn up and spend dosh!!!

 

Make them pay one way or the other I say...LOL

 

Penfold

[un1boy]

ok guys, what would happen with this situation?

 

One claim for the CC entered in the court near where I live.

 

A few months later I eneter the claim for the OD in the court near my work.

 

The bank ask for the claims to be consolidated in the court dealing with the credit card. The Jusge orders a hearing to discuss.

 

In the meantime I enter a judgement request agasint the defendent for the OD claim as they have not entered a defence. My judgement is granted and the defendent is ordered to pay my claim in full.

 

Would this Judgment be honoured, or would it be struck out?

[elsinore]

The bank would have to make an application to the court for the judgment to be set aside. They won't need much of an excuse and the judge would be likely (but not certain) to agree to a setaside.

 

Having said that, I'm sure you aren't going to draw the bank's attention to it, so if they overlook it, send in the bailiffs!

 

What is the timescale, vis a vis the directions hearing and the judgment date?

 

Els

[tomterm8]

Would this Judgment be honoured, or would it be struck out?

 

Almost certainly set aside.

 

I would write to them, informing them of the judgement, and asking payment. See what they reply.

[un1boy]

Thanks guys.

 

The hearing date for the consolidation discussion is in about 2 weeks.

 

Im not getting my hopes up, we will see what happens.

 

I want them to remove all data etc too, which is not in the judgement order - should I contact the court to ask them to order that as well? They have only dealt with the monetary side of the claim.

[un1boy]

Bloody courts are useless though - I faxed a letter to the head of department in my local court asking for a judgment ot be made agaisnt the defendant for the credit card claim, including all relvant sections of the cca, in an attempt to not waste all parties' time (as I have to take time off work and they will have to pay someone to attend) and there is no recollection of it on the system.

 

I called the department manager and he said he'd look into it and call me back - which he didn't. So, I have to make yet another call to him tomorrow.

 

The thing that annoys me is that the prelim hearing date would probably already have been set if this claim had not been stayed and then there would be no consolidation issue at all.

[un1boy]

No update, have to attned court on the date.

 

The judge has told me I can enter an application notice but that it will be dealt with at the hearing, apparently, the issue would be inappropriate to deal with on paper.

[hellhasnofury]

No update, have to attned court on the date.

 

The judge has told me I can enter an application notice but that it will be dealt with at the hearing, apparently, the issue would be inappropriate to deal with on paper.

 

Hello Uniboy,

 

Just offering my support for this long drawn out process.

 

Keep your chin up:D