Just a quick question about a County Court claim by Lowell Solicitors

[Treebadger]

If they only sent that one page then no, they have not complied with their obligations under s.78 CCA 1974.

It may be a crap, extremely lacking in terms agreement, but it is intended to be the agreement - see the text just above the signature bottom right?

The rectangular stamp that you can barely make out over the Data Protection Act part is the execution of the agreement.

At the moment it would be unenforceable due to the non-compliance with the s78 request and lack of any terms.

http://www.legislation.gov.uk/ukpga/1974/39/section/78

Ah ok, thanks for clarifying that bit for me. Yes, I can see the rectangle bit you mentioned too.

So what should I put on my DQ then?

[jaguarsuk]

Ah ok, thanks for clarifying that bit for me. Yes, I can see the rectangle bit you mentioned too.

So what should I put on my DQ then?

There is a guide to completing them in my signature below.

[Treebadger]

There is a guide to completing them in my signature below.

Thanks for the reply jaguarsuk.

I was wondering about the other replies saying about the lack of default notice etc. Should I do something with that info do you think? (I'd happily pay the £255 mentioned if it would stop all this)

[jaguarsuk]

Thanks for the reply jaguarsuk.

I was wondering about the other replies saying about the lack of default notice etc. Should I do something with that info do you think? (I'd happily pay the £255 mentioned if it would stop all this)

If you wanted to apply to strike out the claim potentially you could, the fact that Tesco themselves are not able to provide a copy would mean you should have a good chance at success, but it doesn't 100% mean that the claimant doesn't have a copy.

The risk of an application is not merely it's fee, but also that should you lose costs are not limited and the claimant can claim their costs of defending the application as wasted costs.

If you do decide to apply for the claim to be dismissed it would be on the basis that the original creditor failed to comply with the CCA 1974 s.87 and that the claimant cannot as a result show that a default notice compliant with s.88 was served. Therefore pursuant to CPR 24.2(a)(i) that claimant has no real prospect of succeeding on the claim. You would use the SAR letter stating they have no default notice on their records as a supporting exhibit to a Witness Statement attached and I would be inclined to add a draft order, something along the lines of:

Upon hearing the application of the Defendant District Judge X sitting in the County Court at X

IT IS ORDERED

1. The claim is dismissed.
2. The Claimant pay the Defendant costs of their application, £255 within 14 days of the date of this order.

[Treebadger]

jaguarsuk, thanks for your reply.

If I do decide to apply for the claim to be dismissed, would I send that application at the same time as part of the DQ or should I just fill in the DQ as per the instructions in your signature panel and send that off first (I have to reply by 28th October) and then file the application for dismissal separately?

[jaguarsuk]

You can file and application whenever you see fit, but if you leave it until later in proceedings it might be questioned why you did and count against you in terms of getting costs awarded to you and/or having them awarded against you.

You must return the DQ before 28th to adhere to the court deadlines.

[Treebadger]

You can file and application whenever you see fit, but if you leave it until later in proceedings it might be questioned why you did and count against you in terms of getting costs awarded to you and/or having them awarded against you.

You must return the DQ before 28th to adhere to the court deadlines.

I was planning to post the DQ reply to the court and a copy to claimant tomorrow (Friday 25th by recorded delivery). Based on what you've said, I will also send the application to dismiss at the same time then.

Do I need to send a copy of the application to dismiss to the claimant? (I am guessing not but best to check)

And finally, is there a special form to file the application to dismiss, and if not, what's the best way to construct it please?

[Treebadger]

I'd also like to add that I am really appreciative of all the assistance I have received on this site. As I mentioned before, I can get quite overwhelmed by stuff like this and you have all been a great help to me. I have already passed on the details of your site to several others who have their own legal issues. Big thank you to everyone who's helped me so far!

[pt2537]

Hi,


Ive responded to the questions raised, id double check your mail

[jaguarsuk]

Hi,


Ive responded to the questions raised, id double check your mail

I won't answer your questions in post #52 as you have mail.