**DISCONTINUED** Today received a court claim **UPDATE**

[FlamingParrot]

Re: Today received a court claim

Because a copy for the agreement has now been made under the Civil Procedure Rules as Civil action has now started, not a section 77-79 request.

The court will still need to see the agreement.

The court will simply do a directions for Cabot to produce the agreement even if a section 77-79 request has been previously made since the start of the claim, or on the balance of probabilities a reconstructed agreement from other sources to enforce. Pre 2007 (S.127) excluded

A CCA request is highly relevant because you can use non-compliance with ss.77-79 in your defence and an account is unenforceable for as long as they are in default of that request, however, being in default of a request under the Civil Procedure Rules is not a bar to enforcement. The only way to use non-compliance with CPR 31.14 effectively is via an unless order which will cost you £155 to apply for and in some cases the judges have refused the application.

For cases below £10k that get allocated to the small claims track, a request under Part 31 of the CPR no longer applies once a defence is submitted and the claim is allocated because Part 31 does not apply to small claims, however, you can argue about s.77-79 for as long as they don't comply.

Making a CCA request prior to a court claim will negate possible court action and non compliance.

In this case civil action has already been instigated so a s.77-79 request is irrelevant

No, it's relevant and the creditor has a duty to comply as long as no judgment has been obtained and there's an outstanding balance on the account.

Bringng a claim to the court is not enforcement on its own.

Precisely, which is why the CCA request still applies.

[judgemental24]

Re: Today received a court claim

The point to be made is that if no CCA has been made avaliable to the respondent either through a S.77-79 or CPR 31.14 request:

The Judge will simply do a directions (Unless order) for the creditor to produce the agreement with a sancion of throwing out the claim if the creditor fails in that court direction

[FlamingParrot]

Re: Today received a court claim

But you then put in your Defence that a CPR 31.14 request was made for these documents and declined. Weightmans can decline a request but after mentioned in the defence, the court will simply do a directions notice for the claimant to produce those documents by XYZ date or claim be dismissed/struck out.

That will be the case if the claim progresses all the way to a hearing, but it's nothing to do with Part 31 of the CPR which does not apply to small claims, it's to do with CPR 27.4(a)(i) : http://www.justice.gov.uk/courts/pro...es/part27#27.4

(i) a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing; and

The point that is being missed is that the debt IS unenforceable without a compliant agreement being produced, that is why the judge will do a directions to cabot to produce that agreement. If the claimant cannot produce then it ends.

Hence the need for the ss.77-79 request!

Cabot will have 28 days after the defence has been submitted to decide if they wish to procede with the claim or withdraw on the strength of that defence.

...or they can just not respond and leave the claim stayed for ages as has so often been the case... :mmph:

As stated

Instigating a claim through the county court is not enforcement on its own

No, it isn't, as per McGuffick, which is why they have a duty to respond to a CCA request right up to the moment a judge makes an order. :juge:

It's always a good idea to get your facts right, especially when people are defending claims, the devil's in the detail.

[FlamingParrot]

Re: Today received a court claim

The point to be made is that if no CCA has been made avaliable to the respondent either through a S.77-79 or CPR 31.14 request:

The Judge will simply do a directions for the creditor to produce the agreement with a sancion of throwing out the claim if the creditor fails in that court direction

As above, you can't carry on arguing about CPR 31.14 once the case goes to small claims because Part 31 does not apply to small claims but you CAN still argue about ss.77-79 because the CCA applies to all regulated credit agreements.

Cabot have often replied with one of their template letters stating they can't find the documents and the account is unenforceable and they are prevented from obtaining a judgment. That's hardly what would make them look good in court!

There is no harm in sending a CCA request when you receive a claim, it costs only £1 + postage, it's a tried and tested method that has worked hundreds if not thousands of times so I fail to see any reason not to follow it or for someone to all of a sudden, start questioning it. :noidea: :confused2:

[judgemental24]

Re: Today received a court claim

You have ht the nail on the head

The creditor has a duty

But you know as well as me they hardly ever follow protocol. Look at the response from Brian Carter as an example or Motormile Finance. It will always come down to either a withdraw once a defence has been submitted, summary judgement or directions hearing. That is what will decide these matters in the real world of scum bag DCA scatter gun claims relying on default judgments. It is they who who show complete contempt for the law

Small claims does not matter as the claim has not even been allocated a track yet, even though it will be small claims. The reference to the CPR 31.14 request in the defence will be the persuasion to the court.

I am not questioning the validity of a s.77-79 request before a claim has been issued, only after litigation has commenced.
The time to hit the creditor with a S.77-79 request is when you get a solicitors letter etc saying if you do not pay up etc in xyz days we will commence litigation . The creditor has to follow pre action protocol ( practice direction) If the creditor fails in that duty it gets included in the defence.

But as you say there is no harm in actually sending the s.77-79 request, just the merits of it i am questioning

[Nibbler]

Re: Today received a court claim

3.The defendant is indebted to the claimant in respect of the amount in the sum of £***.**

4. the Claimant claims the said sum of £***.** plus costs ..

So, less than £1K claimed then, including costs?

[Stu]

Re: Today received a court claim

Yes, 950 ish and that includes the cost..

[nemesis45]

Re: Today received a court claim

[QUOTE=judgemental24;576012]You have ht the nail on the head

The creditor has a duty

But you know as well as me they hardly ever follow protocol. Look at the response from Brian Carter as an example or Motormile Finance. It will always come down to either a withdraw once a defence has been submitted, summary judgement or directions hearing. That is what will decide these matters in the real world of scum bag DCA scatter gun claims relying on default judgments. It is they who who show complete contempt for the law

Small claims does not matter as the claim has not even been allocated a track yet, even though it will be small claims. The reference to the CPR 31.14 request in the defence will be the persuasion to the court.

I am not questioning the validity of a s.77-79 request before a claim has been issued, only after litigation has commenced.
The time to hit the creditor with a S.77-79 request is when you get a solicitors letter etc saying if you do not pay up etc in xyz days we will commence litigation . The creditor has to follow pre action protocol ( practice direction) If the creditor fails in that duty it gets included in the defence.

But as you say there is no harm in actually sending the s.77-79 request, just the merits of it i am questioning[/QUO

The merits of A CCA Request as soon as a claim is received is a tried and proven tactic which should be applied in every suitable claim.
Just look around all thread it's recommended and used by those with experience of companies like Lowell and Carter the Clown who declines all CPR31.14 on small claims even before allocation to the SCT.

nem
nem

[Stu]

Re: Today received a court claim

I would just like to say thanks to all for the help provided a reassurances, i have sent out the relevant papers Ie CPR/CCA and the template provided by Judge in #8, what is the next move i should expect from either side?

[judgemental24]

Re: Today received a court claim

The most important thing is that you have now acknowledged the claim stating you are defending all.

We now wait for the response from weightmans to those letters/templates sent, the defence wil be decided on that.

I am 100% satisfied that wil be the statute barred defence at this moment. Weightmans will probably send you a letter saying they have withdrawn the claim once they have confirmed that fact and looked into Cabosts BS..

We have 28 days maximu to submit the defence from date on the claim form if needed. The next move is with Weightmans so update with all responses, no matter how irrelevant they might seem. I am quite confident on a good result.

[Nibbler]

Re: Today received a court claim

The merits of A CCA Request as soon as a claim is received is a tried and proven tactic which should be applied in every suitable claim.

Indeed it should.

[nemesis45]

Re: Today received a court claim

As above, you can't carry on arguing about CPR 31.14 once the case goes to small claims because Part 31 does not apply to small claims but you CAN still argue about ss.77-79 because the CCA applies to all regulated credit agreements.

Cabot have often replied with one of their template letters stating they can't find the documents and the account is unenforceable and they are prevented from obtaining a judgment. That's hardly what would make them look good in court!

*****There is no harm in sending a CCA request when you receive a claim, it costs only £1 + postage, it's a tried and tested method that has worked hundreds if not thousands of times so I fail to see any reason not to follow it or for someone to all of a sudden, start questioning it. :noidea: :confused2:

******
***** Given the results achieved by making a CCA Request I have to agree!! I cannot see any reason for the questioning the use of this!!

nem

[nemesis45]

Re: Today received a court claim

The 6 year " clock " Stopped ticking on the date this claim issued.
In any calculation on the statute barred status of the alleged debt
must take this in to consideration.
Default can have been place up to 6 months after the last payment
or acknowledgment.
A number of solicitors are claiming the default starts the 6 year period.

nem

nem

[FlamingParrot]

Re: Today received a court claim

I would just like to say thanks to all for the help provided a reassurances, i have sent out the relevant papers Ie CPR/CCA and the template provided by Judge in #8, what is the next move i should expect from either side?

You need to keep an eye on the calendar, you have a maximum of 33 days to file a defence. :clock: Knowing Cabot, they won't be able to get hold of the CCA because they'll be relying on the original creditor to supply a copy so they're likely to send you a letter saying it will take them 40 days to obtain and it may also say the account is on hold. That's a standard template response to all CCA requests they received and should be ignored, you still need to file your defence in time. There is no need to chase the CCA request as non-compliance is a bar to enforcement.

Weightmans will be in a similar position and not likely to supply you with anything either. They should respond in 7 days so once the time has passed, you should chase up your CPR request and ask them to agree to a 28 day extension as allowed by CPR 15.5. If they agree you need to tell the court in writing (email is OK).

Do keep us posted as soon as you hear anything (or not as the case may be). :typing:

[Stu]

Re: Today received a court claim

You need to keep an eye on the calendar, you have a maximum of 33 days to file a defence. :clock: Knowing Cabot, they won't be able to get hold of the CCA because they'll be relying on the original creditor to supply a copy so they're likely to send you a letter saying it will take them 40 days to obtain and it may also say the account is on hold. That's a standard template response to all CCA requests they received and should be ignored, you still need to file your defence in time. There is no need to chase the CCA request as non-compliance is a bar to enforcement.

Weightmans will be in a similar position and not likely to supply you with anything either. They should respond in 7 days so once the time has passed, you should chase up your CPR request and ask them to agree to a 28 day extension as allowed by CPR 15.5. If they agree you need to tell the court in writing (email is OK).

Do keep us posted as soon as you hear anything (or not as the case may be). :typing:

Hopefully, i have just checked and the both papers were signed for on the 22 so at least they landed where they needed to be, now just wait for the response...