Advice please - court claim received

[flinko]

Re: Advice please - court claim received

Admin, can someone purge SELMAR's related posts into a new thread so this one doesn't get too confusing please?

Good luck Selmar.

Miliitant et al...I took the papers to the local County Court this morning and they said they didn't perform "forwarding functions" for other courts. Anyway, after a discussion and phone call to Northampton CCBC it seems I can pay over the phone to them and email the N244 and related docs to CCBCFEES@HMCTS.GSI.GOV.UK (for future reference)

This obviously means I can't physically sign the docs though
I guess it shall be processed quicker though?

[miliitant]

Re: Advice please - court claim received

do as nortampton says

just make sure you print your name at the bottom where it says sign

at the end of the day

its just an application notice and not a court claim so i would think it will cause NO problem


you could even sign the docs and fax them over, ask northamton for their fax number


if you want, i dont know how computer literate yopu are

have you considered putting your signature onto a blank piece of paper, scan it into your computer, then you can cut and paste your signature onto any other document

[flinko]

Re: Advice please - court claim received

Thanks, I just printed the N244 out, signed, scanned back in as PDF and sent on. Not heard back so i'm assuming it's now ok.

Guess I have to wait to hear from the court now for further instruction?

[miliitant]

Re: Advice please - court claim received

yep

hard work is now all done

sit back and relax, they will now be running about like headless chickens

[flinko]

Re: Advice please - court claim received

Had a letter from the court stating that the claimant has been informed of the defence etc and has 28 days to respond.

[flinko]

Re: Advice please - court claim received

Had another letter from Northampton ccbc to say that the claim has been transferred to my local court for application to strike out.

[flinko]

Re: Advice please - court claim received

Had a letter from my local court......

"The hearing of the defendant's application (see copy attached) will take place at xx.xxam on the 22nd January."

That's all it said though, nothing attached etc

[flinko]

Re: Advice please - court claim received

Can anyone tell me what happens/what I should do once the 28 days for the claimant to respond to my defence has elapsed? (if they don't respond that is of course)

Also, the hearing in my local court - this is for the application to strike out I take it? Will I have to attend and if so, what will I need to prepare and be prepared to answer?

[flinko]

Re: Advice please - court claim received

Can anyone tell me what happens/what I should do once the 28 days for the claimant to respond to my defence has elapsed? (if they don't respond that is of course)

Also, the hearing in my local court - this is for the application to strike out I take it? Will I have to attend and if so, what will I need to prepare and be prepared to answer?

It will be 28 days from the date I submitted my defence on Monday coming, do I need to be doing anything or will it continue automatically if the claimant hasn't responded?

[alham]

Re: Advice please - court claim received

You have a hearing date - let's hope that they do not respond before than and then you can add that to your evidence. Also, remember that you have to prepare and submit skeleton argument up to three days before the hearing1

[flinko]

Re: Advice please - court claim received

You have a hearing date - let's hope that they do not respond before than and then you can add that to your evidence. Also, remember that you have to prepare and submit skeleton argument up to three days before the hearing1

Can someone help with that please? I have no idea where to begin!

[Celestine]

Re: Advice please - court claim received

Brilliant article here on Skeleton Arguments.
http://www.legislation.gov.uk/ukpga/.../61/section/49

However, if things stay as they are, i.e. no compliance with 31.14, then a skeleton will not be needed. Your application is clearly worded. Make sure you understand it fully and can discuss it in Court.

It is highly unlikely they will send a barrister imho.

If however, they do somehow produce all the required documentation, that could make things a bit trickier, as Courts rarely seem to penalise for late compliance.

[flinko]

Re: Advice please - court claim received

Brilliant article here on Skeleton Arguments.
http://www.legislation.gov.uk/ukpga/.../61/section/49

However, if things stay as they are, i.e. no compliance with 31.14, then a skeleton will not be needed. Your application is clearly worded. Make sure you understand it fully and can discuss it in Court.

It is highly unlikely they will send a barrister imho.

If however, they do somehow produce all the required documentation, that could make things a bit trickier, as Courts rarely seem to penalise for late compliance.

Don't understand most of that link Celestine - Rules as to notice of dishonour? it's all a bit legal-language-tastic for my understanding! :/

My application seems straightforward to me at the moment (as long as they don't comply) as I would be unable to defend any of their claim without knowledge of what exactly it is they are claiming for. No copy of the agreement they mention, no copy of the default notice that has supposedly been provided and no deed of assignment.

Should I wait and see if they produce anything or start on a skeleton argument? My understanding is that it basically needs to be a summary of my side of the story so far in this claim?

[alham]

Re: Advice please - court claim received

Correct. summarize the case the best you can (date line can be very helpful). Then mention your part 31 application without which you were unable to defend the case. Then mention that " whilst every effort by the defendant to obtain this information has been unsuccessful the defendant contends that the claimant failed to demonstrate validity and to support it's allegations. As a result the defendant moves for the case to be struck out pursuant to CPR 3.4.2 (a), (b) and (c)" Also do a trawl of this site to find any applicable case references (you can do your own research on www.bailii.org ).

[flinko]

Re: Advice please - court claim received

Ok, I have been looking around at various links etc and come up with this which probably needs editing down....

1. I am a Litigant in Person. I am also the Defendant in these proceedings.

2. The Claimant's case is that the Defendant entered into a regulated agreement with ABC Bank (No. xxxxxx) and that this account was assigned to the Claimant on 19/04/11. Whilst every effort by the Defendant to obtain this information has been unsuccessful, the Defendant contends that the Claimant failed to demonstrate validity and to support its allegations. As a result the defendant moves for the case to be struck out pursuant to CPR 3.4.2 (a), (b) and (c).

3. In order to prove its claim, the Claimant must establish a number of matters. Firstly that there was an original agreement between the Defendant and ABC Bank, secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made thereunder) both at the date of the original agreement and at all times thereafter. Thirdly, it must establish that it (The Claimant) complied with the provisions of the Consumer Credit Act 1974 in that it must show that it served a proper default notice upon the claimant together with a separate termination notice before proceedings were commenced. Fourthly it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Finally, that proper notice of any such assignment was given to the Defendant (Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824)

4. It is submitted that it is the obligation of the Claimant to prove all of the matters referred to above. As yet, the Claimant has failed to produce a copy of any documents requested by the Defendant in the CPR 31.14 sent to the Claimant on the 15/11/2012 and by subsequent telephone calls and correspondence to the Claimant chasing progress on the request.

5. In such eventuality the absence of a written agreement is detrimental to the Claimant's case and as a consequence any alleged agreement that was entered into before the 6th April 2007 is unenforceable by virtue of section 127 (3) (the terms of which were not repealed by operation of Schedule 3 of the 2006 Act)

6. The term Unenforceable has been defined as, albeit in the context of the Moneylenders Act 1927( the Act was a precursor to the current Consumer Credit Act and the case involved unenforceability on the ground that one of the terms had not been included in the loan agreement.), in the House of Lords case of Orakpo v Manson Investments Limited [1978] A.C.95 “When there is a security declared by Parliament to be unenforceable the security is void. The effect is that there never was a security or contract of loan”

7. Further and in any event if the document produced by the Claimant is an Agreement it is further rendered unenforceable, by want of compliance with section 61(1)(a) of the Consumer Credit Act in that it must be signed by both the debtor and the creditor and that it must contain all of the “Prescribed terms”. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest . Pursuant to S127(3) Consumer Credit Act a failure to comply with S61(1)(a) and the prescribed terms requirements unenforceable.

8. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

9. I also put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

10. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

11. It is further submitted that, in any event, the Defendant is entitled to, as a matter of law, be provided with a copy of the alleged assignment (Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824)

12. The defendant notes to have a right of action in their name, the claimant would need to serve a Notice of Assignment as laid out in Section 136 of the Law of Property Act 1925 and that section 196 of the same act sets out how a Notice of Assignment must be served.

13. Therefore pursuant to point above, I require the claimant to provide Notice of Assignment and also proof of service of the said Notice pursuant to S196 Law of Property Act 1925 and put them to strict proof that such documents exist and were served correctly and also the defendant require the deed of assignment be provided to the court for inspection

14. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

15. I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

16. The requirements for service via the post are

Law of Property Act (1925) s196
Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

17. It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

18. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

19. To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

20. Consequently, I do not believe that any notice of assignment was properly served upon me, and therefore any assignment has not been perfected in law.

The timeline so far....

5th November 2012 - Claim form issued
9th November - Claim form received
15th November - CPR31.14 sent recorded
16th November - CPR31.14 signed for as received by claimant’s solicitor
19th November - Acknowledgement of service sent
25th November - called Claimant’s solicitor to chase - CPR had been forwarded to client – I gave 48 hours to respond before N244 would be submitted
26th November - follow up call to chase progress - email sent also
28th November – Claimant’s solicitor email to say client are dealing internally but they had notified their client of my request of response before CoB tomorrow
6th December - N244 submitted to Northants
6th December - MCOL defence submitted
11th December - Northants wrote saying claimant has 28 days to respond to my defence
23rd December - letter from local court saying defendant's application will take place on 22nd Jan 2013

Any thoughts/advice on this and anything that should be changed or how I should compose the argument?

Thanks