Claimant threatening summary judgement on stayed ccj claim. Should I reply?

[peterfranks]

Thanks Amethyst

something like this??

Claim ref/ xx between xxx and xxxx

With reference to the above claim and the General Form of Judgement or Order received on the 24^th May 2019 (Copy attached)
I am writing to inform the Court that the claimant has failed to comply with paragraph 3 of that order. I have to date received no correspondence from the claimant and I telephoned the court on Friday 7^th 2019 to be informed they had also received nothing.
I therefore request a strike out of the claimant’s case, or await further directions from the court.

Yours sincerely

[Amethyst]

Yes that should be fine.

If you hear nothing you should still file and serve a defence pointing out the failure to comply with the order at the beginning.

[peterfranks]

Also, on a purely curious note, what exactly are the "particularised particulars of claim" they should have provided.?

[Amethyst]

Sending you a copy of the original claim form would probably have sufficed for the order but, As you did already have that when you made the application to set aside a it seems the court wanted full particulars of claim rather than the brief details of claim allowed for in the money claim online process… So it would've included more information such as when you first open the account, the method you used to open the account, The terms of the account you broke, assignment info and when you defaulted any breakdown of the accounts, The legislation under which they are claiming payment etc etc

[peterfranks]

The plot thickens.
Today i received from the claimant the infamous particularised particulars of claim and questionnaire. 6 days after deadline and letter dated 7th, so 2 days after deadline.

The letter states that they have received my original witness statement and the letter I sent offering to no pursue costs if they discontinue.They give the usual spiel of offering a discount on balance and financial statement form.

here is the photocopy of their PPof Claim I can't see any real changes.

The questionnaire indicates they will be sending a rep to the court

Next moves?

[peterfranks]

by the by, the court will have received this morning the letter I sent suggested by Amethyst asking for a strike out based on them not obeying deadline.

[Amethyst]

They had to file this with court as well, so the Judge might be strict on them or he might let it go. Either way whilst you wait and see you need to sort out your defence to ensure that is in on time.

So, the Exhibits - is there assignment from Newday TO IDEM/Capita ? or just this assignment from IDEM/Capita to Arrow ( https://legalbeagles.info/forums/fil...tch?id=1464361 ) ?

Is this https://legalbeagles.info/forums/fil...tch?id=1464362 meant to be their evidence of default ? is that all they had at exhibit NY02 ?

Basically seems like there no new info and its just the original particulars with more words and references to the evidence in the prior WS ?

[peterfranks]

Yes there is no assignment from new day to idem. And that exhibit from idem to arrow is from arrow themselves saying that idem have assigned them the debt. Nothing from IDem themselves.

the unreadable screen shot is their evidence of default.

These are all mentioned as part of my defence in my original witness statement

here it is....made it with the help of jaguarsuk


WITNESS STATEMENT OF xxxxxxxxxx Defendant

1. I xxxxxxx of xxxxxxxxxxx am the defendant in these proceedings as Litigant in Person.
2. On 07.08.2017 Restons Solicitors Limited acting for the claimant issued a claim through money claim online and the particulars of claim were insufficient to allow me to properly asses my position.
3. I made a request to the claimants solicitor under CPR 31.14 to inspect the documents mentioned in the limited Particulars of Claim as a well as a request for documentation under the Consumer Credit Act 1974 s.77-78 to the claimant.
4. The claimant and their solicitor failed to comply with either request, so I filed a defence based on the limited information within the deadline of the court.
5. The claim was subsequently stayed and the claimant dispensed with the services of their solicitor.
6. My reasonable grounds for defending the claim were that the claimant had failed at that time to evidence their claim.
7. On filing of this application nearly two years later, the claimant has now served some documentation, but have still failed to evidence their claim and pursuant to CPR 24.2(a)(i) the claimant has no real prospect of succeeding on the claim.
8. I will now address individual points in the claimants witness statement using their numbered paragraphs.
9. Paragraph 4 is denied,
   1. The claimant claims issue of a letter on 10/09/2014 entitled "0013 COLLTRS" marked NY02 to be issue of the default notice, but without a copy of "0013 COLLTRS" we only have the word of claimants counsel it was a default notice.
   2. For the avoidance of doubt it is denied the letter in NY02 is for a default notice, but if it were the case the screenshot showed the issue date of a default notice it does not show the default notice was compliant with the Consumer Credit Act 1974 s.88.
   3. If a default notice was issued, it should have been issued by New Day Limited ('New Day'), however the illegibility of NY02 makes it impossible to determine whom sent "0013 COLLTRS."
   4. I assert that the issue of "0013 COLLTRS" is in fact the issue of a debt collector's letter by Idem Capital Securities Limited ('Idem') and no default notice was issued by New Day under the Consumer Credit Act 1974 s.87.
   5. And in any event the claimant is unable to evidence any default notice compliant with the Consumer Credit Act 1974 s.88 was ever served.
10. Paragraph 5 is denied,
    1. I do not recall receiving any such letters as those marked NY03 or any other notice of assignment.
    2. The claimant has failed to evidence a notice of assignment from New Day of the alleged debt being assigned to Idem.
    3. The claimant has failed to evidence a notice of assignment from Idem of the alleged debt being assigned to them from New Day.
    4. The claimant has failed to evidence a notice of assignment from Idem of the alleged debt being assigned to them.
    5. The Law of Property Act 1925 s.136 specifically talks about the assignor's obligations and the claimant has failed to provide any evidence from either assignor. Producing a notice of assignment as final assignee in a chain does not alone satisfy that assignment was lawful as the claimant's counsel asserts and counsel has failed evidence the assignment from New Day as an assignor to Idem, and then further with Idem as an assignor to the claimant.
    6. It is for these reasons I believe the claimant has no right to bring a claim as they cannot prove themselves to be the lawful owners of the alleged debt.
11. Paragraph 13 is denied,
    1. As demonstrated in paragraphs 4 and 6, the lack of evidence to bring the claim is reasonable grounds to defend the claim.
    2. Had the claimant brought the claim to trial with no evidence to support the claim the defence had every prospect to succeed on the claim on that basis.
    3. In the light of evidence from the claimant with this application I believe I have demonstrated reasonable grounds to defend the claim and my prospect of success on the claim in paragraphs 9 and 10 of this witness statement.
12. Paragraph 15 is denied, pursuant to CPR 7E 5.2 (2) the claimant and their solicitor had every opportunity to avail me of a detailed Particulars of Claim and in failing to, along with failing to evidence their claim for nearly two years, I believe their conduct to have been unreasonable pursuant to CPR 27.14.
13. Paragraph 16 is denied for the reasons set out in paragraph 10 of this witness statement and I challenge counsel for the claimant to evidence that Notice of Assignment was "left at the last-known place of abode or business in the United Kingdom" pursuant to the Law of Property Act 1925 s.196(3).
14. Paragraph 17 is denied for the reasons set out in paragraph 8 of this Witness Statement.
15. Paragraph 18 is neither admitted or denied, but shows the deliberately unreasonable conduct of the claimant in this claim,
    1. The claimant by admission of counsel was in receipt of a request under the Consumer Credit Act 1974 s.77-78, but chose only to treat it as a request under s.77 to prevent them having to evidence the claim prior to the defence deadline.
    2. The title of form N1 on which this claim was issued is "Claim Form" not "Claim Form (Small Claims Track)." Prior to the filing of an N180 "Directions questionnaire (Small Claims Track)" there is no allocation to Small Claims Track in this or any other claim and therefore CPR 27.2 (b) did not relieve the claimants solicitor of their Part 31 obligations at the time of the request under CPR 31.14.
16. Paragraph 19 is fervently denied, for the reasons set out in paragraphs 9 and 10 of this witness statement the claimant has failed to evidence a default notice compliant with the Consumer Credit Act 1974 s.88 was ever issued under s.87 and to provide sufficient evidence to the court of the chain of assignment between New Day, Idem and the Claimant under the Law of Property Act 1925 s.136.
17. I respectfully request that the stay on the claim be lifted, that the claim is dismissed pursuant to CPR 24.2(a)(i) and that an order be made that the claimant pay me costs due to their unreasonable conduct in the claim pursuant to CPR 27.14.
18. In the event the stay on the claim is lifted and the court adjudges the matter be heard at trial I respectfully request leave to amend my defence, that the claimant bear the cost of the amendment given their deliberately obstructive stance as highlighted in paragraphs 12 and 15 of this witness statement.
19. I, xxxxxxxx, as defendant believe all facts stated within this witness statement to be true

SIGNED______________________

DATE xxxxx

[peterfranks]

At court when the judge lifted the stay for the claimant he pointed out he had not seen my CPR request from my original defence at MCOL, so should I add that letter as an exhibit in my amended defence? Also how/where should i mention they did not comply to his deadline?
I can sort of understand why they are really pushing this, they have spent hundreds in court fees, solicitors costs ect that probably cost more than the alleged debt they purchased.

[jaguarsuk]

Okay, so I’m on my phone right now and when I can get on the computer later will have a crack at a defence first draft.

Can an you post a copy of the original defence or did you just use the template from this site?

[peterfranks]

the original defence? do you mean the mcol one?

[peterfranks]

the original defence i no longer have access to since i cannot open any old mcol cases since they changed over to using the hmrc gateway however i can send a copy of the cpr request i sent to their solicitors back in 2017 which was cited in my original defence. the rest of the defence was based around a legal beagle template

[jaguarsuk]

Okay that's fine, you'll need to send off a copy of the 31.14 request with the defence marked as detailed in paragraph 5 below, except put your initials instead of "ST."

1. The Defendant received the claim [Claim Number] from the Northampton County Court Business Centre dated 07/08/2017.

1. In accordance with the Order of District Judge XX dated XX/XX/2019 the defendant files an amended defence by way of response to the Claimants Amended Particulars of Claim dated XX/XX/2019.

1. Each and every allegation in the Claimants Amended Particulars of Claim is denied unless specifically admitted in this Amended Defence.

1. This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.

1. On the [Date] The Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Restons Solicitors Limited. Now produced and marked ST1 is a copy of that request.

1. Restons Solicitors Limited did not provide copies of the Agreement, Default Notice and Notice of Assignment requested.

1. The Defendant will now plead to the individual paragraphs in the claimants Amended Particulars of Claim using their numbered paragraphs.

1. Paragraph 3 is admitted, the Defendant has previously entered into an agreement with New Day Limited (‘New Day’) for provision of credit.

1. Paragraph 4 is denied,

1. NY02 does not prove a default notice was issued by New Day under the Consumer Credit Act 1974 s.87.
2. For the avoidance of doubt it is denied the letter in NY02 is for a default notice, however if it were the date of issue of one it would not suffice to evidence any default notice was compliant with the Consumer Credit Act 1974 s.88.
3. The illegibility of NY02 makes it impossible to determine whom issued a letter on 10/09/2014 entitled "0013 COLLTRS."
4. The Defendant asserts that the issue of "0013 COLLTRS" is in fact the issue of a debt collector's letter by Idem Capital Securities Limited ('Idem') and no default notice was issued by New Day under the Consumer Credit Act 1974 s.87.

1. Paragraph 5 is neither admitted nor denied.

1. Paragraph 6 is denied,

1. The Defendant was not served the letter NY03 dated 05/12/2016.
2. The Law of Property Act 1925 s.136 specifically talks about the assignor's obligations and the claimant has failed to provide any evidence from either assignor.
3. The Claimant has failed to evidence a notice of assignment from New Day of the alleged debt being assigned to Idem.
4. The Claimant has failed to evidence a notice of assignment from Idem of the alleged debt being assigned to them.
5. It is for this reasons the Claimant has no right to bring a claim as they cannot prove themselves to be the lawful owners of the alleged debt.

1. Paragraph 7 is denied for the reasons set out in paragraphs 9 and 11 of this Amended Defence, the Claimant has failed to evidence a default notice compliant with the Consumer Credit Act 1974 s.88 was ever issued under s.87 and to provide sufficient evidence to the court of the chain of assignment between New Day, Idem and the Claimant under the Law of Property Act 1925 s.136.

1. Under Civil Procedure Rule 16.5 (4) “Where the claim includes a money claim, a Defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.” Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

1. It is denied that the Claimant is entitled to the relief as claimed or at all and the Defendant respectfully requests it be dismissed.

1. The Defendant respectfully requests the Claimant is ordered to pay costs of and occasioned in dealing with this matter to the Defendant pursuant to CPR 27.14 due to unreasonable conduct on the claim, namely

1. Pursuant to CPR 7E 5.2 (2) the Claimant and Restons Solicitors Limited had opportunity to avail the Defendant of a Detailed Particulars of Claim with the original claim form dated 07/08/2017.
2. The Claimant by admission of counsel in her Witness Statement dated XX/XX/2019 was in receipt of a request under the Consumer Credit Act 1974 s.77-78, but they chose only to treat it as a request under s.77 to prevent them having to evidence the claim prior to the defence deadline.
3. The title of form N1 on which this claim was issued is "Claim Form" not "Claim Form (Small Claims Track)." Prior to the filing of an N180 "Directions questionnaire (Small Claims Track)" there is no allocation to Small Claims Track in this or any other claim and therefore CPR 27.2 (b) did not relieve Restons Solicitors Limited of their Part 31 obligations at the time of the request under CPR 31.14.
4. The Claimant failed to comply with the order of District Judge XX dated XX/XX/2019 to file and serve Amended Particulars of Claim prejudicing the Defendants ability to comply with the deadline to file an Amended Defence by the date ordered.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.

Please allow time for others to comment and/or amend this, but ensure you adhere to the deadline to file.

By the rules the court of their own volition should strike out the claim for failing to comply with the order of the judge, but they probably won't and will accept the late filing of the amended poc.

Edit to add: This had better formatting, but it's been lost in posting. The sub paragraphs 1-5 should be lettered when you have all the main para's numbered.

[peterfranks]

thanks jaguarsuk! I need to send it off on Friday to meet the deadline. I am 100% certain if I miss a deadline it will be curtains for my defence, as opposed to the claimant who'll probably have their missed deadline overlooked. The letter I got from them today wasn't even registered just normal post.

[jaguarsuk]

It doesn’t have to be registered, first class post is fine. They should have ensured they posted with sufficient time to meet the deadline though.

You definitely need to meet the deadline as you are right, it’s unlikely you’d be afforded exception.

It should be an interesting hearing because they have offered nothing new.