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Apply for a strike out?

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  • Apply for a strike out?

    Claimant has failed consistently to supply copy of CCA and has now proceeded on small claims track. Already submitted embarrassed defence as no sight of any paperwork to validate claim.

    Had allocation papers, but still no CCA.
    Alleged debt is highly likely statue barred.

    Can I ask the judge to strike out, or do I complete Allocation questionnaire and agree to small claims and tick for mediation and then hit the claimant with the 'where is the paperwork' question during mediation?

    It is our good old 'friends' Cohen's again, and I really want them to do one.

    Advice please?

    thanks



















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    Tags: None

  • #2
    You would have to apply to strike out the claim at a cost of 255, plus if unsuccessful you open yourself up to being made to pay their costs of defending the application. That's a cost and risk you need to weigh up as the less time they have to source the documents the less likely they are to succeed in sourcing them.

    As for Stat barred, are you sure? The last payment to anyone, not just the original creditor, needs to be more than six years from the date of the claim or the date of default needs to be six years whichever is the latter event.

    To mediate you will be asked if you have all the information to mediate and when you reply that you don't or during mediation ask for it then mediation will just be terminated.

    If you don't go down the application route you should fill in the N180 per the guide in my signature below, duly inform the mediation team when the time comes that you don't have the information to mediate and then it'll go to court.
    COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

    My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

    Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

    Comment


    • #3
      Claimant has had over 8 weeks to supply CCA, and has consistently failed to do so. Defendant is in receipt of means tested benefits, so has Fee Exemption. CPR 16.5(4) has been totally ignored as claimant has supplied zero paperwork to the defendant attempting to prove the claim. This is why I would seek a strike off, as the claimant is not allowing the defendant to submit a full defence due to non delivery of CCA.

      Thank you for your idea of mediation, and the collapse of it due to no paperwork, but that surely just delays the inevitable strike out further down the line, as the claimant is not providing paperwork, and the defendant is left only with an embarrassed defence until that point?

      thanks again.



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      Comment


      • #4
        The defence is all they can defend at this stage, so not embarrassing and surprisingly common.

        If in receipt of fee remission there's no fee to pay obviously, but there is still the risk of costs award if unsuccessful to the claimant.

        If you make an application to strike out the claim you still want to return the N180 as well.
        COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

        My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

        Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

        Comment


        • #5
          OK, come across an issue - the supplementary paperwork asks you to tick Yes or No in 'I can confirm that I have enough information about the claim to allow me to enter into negotiations'. That cannot really be ticked yes, as there is no information on which to rely on apart from the Claimants form.
          Is it time to just allow this to proceed to a hearing OR is it time to just do the strike out application and see what happens?
          Thanks again

          Comment


          • #6
            Originally posted by legaleaglet View Post
            OK, come across an issue - the supplementary paperwork asks you to tick Yes or No in 'I can confirm that I have enough information about the claim to allow me to enter into negotiations'. That cannot really be ticked yes, as there is no information on which to rely on apart from the Claimants form.
            Is it time to just allow this to proceed to a hearing OR is it time to just do the strike out application and see what happens?
            Thanks again
            They may supply you with the information before mediation, so tick yes.

            You will be asked the question again before mediation and if at that time they haven't provided it then it would be terminated on you confirming that.

            You may make an application at any point in the proceedings, if you are going to apply to strike out then now is as good a time as any, but as warned before if they come up with the documents and are successful in defending the application you risk costs being awarded against you.
            COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

            My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

            Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

            Comment


            • #7
              Me again, so the claimant has supplied tons of statements, copy of the default notice from 2010, and copies of a December 2013 statement allegedly showing a payment, BUT no copy of the CCA. They have also indicated they are still taking this to small claims, even without the CCA, as the payment in Dec 2013 keeps the alleged debt alive. Can the defendant rely on the lack of CCA? The defendant is, of course, asking them to prove the payment was actually made, and is not one they have made up.

              Anything else we can do whilst we wait on mediation being invoked?

              Thanks once again.

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              Comment


              • #8
                Originally posted by legaleaglet View Post
                Me again, so the claimant has supplied tons of statements, copy of the default notice from 2010, and copies of a December 2013 statement allegedly showing a payment, BUT no copy of the CCA. They have also indicated they are still taking this to small claims, even without the CCA, as the payment in Dec 2013 keeps the alleged debt alive. Can the defendant rely on the lack of CCA? The defendant is, of course, asking them to prove the payment was actually made, and is not one they have made up.

                Anything else we can do whilst we wait on mediation being invoked?

                Thanks once again.

                *
                Under the Consumer Credit Act 1974 if they are unable to evidence the credit agreement it is unenforceable, they know this and are just hoping to scare you into settling.

                If ever there was a point to apply for a strike out of the claim, then this is it! They have admitted they cannot evidence their claim.
                COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

                My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

                Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

                Comment


                • #9
                  Thank you Jaguarsuk. Would you have a link to a sample strike out, as it is a long time since I last completed one of those.

                  thanks again.

                  Comment


                  • #10
                    UPDATE - Claimant has, today, supplied a copy of a Reconstituted Agreement, no dates/signatures, and claims this complies citing Carey v HSBC (surprise, surprise).

                    So, I am thinking Section 61(1)(a) and 127(3) of CCA that a creditor must be able to produce a signed document (not necessarily the credit agreement) that contains the prescribed terms. That document must include the credit limit, the interest rate and details of when a debtor is to discharge his payment obligations.

                    The claimant has brought a case without sourcing a signed document, this is a defence in itself surely?

                    The onus is now on claimant to prove that a signed document did exist contained the prescribed terms??

                    AND the onus is also on the Claimant to prove that the defendant did make the payment in December 2013??

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                    Last edited by legaleaglet; 23rd January 2020, 11:07:AM.

                    Comment


                    • #11
                      Originally posted by legaleaglet View Post
                      UPDATE - Claimant has, today, supplied a copy of a Reconstituted Agreement, no dates/signatures, and claims this complies citing Carey v HSBC (surprise, surprise).
                      The effect of Carey is that a reconstituted version does not need to include a signature box or indeed the actual signature but must contain the debtor's name and address at the time it was executed. Does it?

                      Originally posted by legaleaglet View Post
                      the onus is also on the Claimant to prove that the defendant did make the payment in December 2013??
                      They will produce a record of their log and submit that. You will need to counter that by showing you made no payment to them via bank statements from the time.
                      COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

                      My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

                      Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

                      Comment


                      • #12
                        The reconstituted does have the name and address BUT is dated bottom right corner 4 years after the alleged document was signed!

                        Comment


                        • #13
                          well, well, well, the cheeky so and so's have advised defendant that they agree to the 1 per month offered by email (no such email ever sent) and herein enclosed a TOMLIN order for signing. What a fast one they are trying to pull, and they have increased amount owed by over 1200 to cover costs etc.


                          This is a disgusting try on by this shower!

                          Is this something to report to the Judge?

                          Comment

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