Illegitimate signature on claim

**Amethyst** · 19th December 2010, 10:49:AM

Re: Illegitimate signature on claim

Is that your only defence to the claim ?

4.1 If a statement of case is not verified by a statement of truth, the statement of case will remain effective unless it is struck out, but a party may not rely on the contents of a statement of case as evidence until it has been verified by a statement of truth.

4.2 Any party may apply to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.

(Part 22)

I don't think you will have done yourself qny favours wth the srcasm in your application. It would simply be,'' the claim form isnt signed and therefore not verified by a statement of truth and should be struck out if it is not signed correctly within 7 days.'' I agree the claim should be signed by an individual rather than a company (although commercial court does allow a company name as signature on certain forms) but it is a minimal issue and I can't see it being a full defence to a claim against you.

**ERD** · 20th December 2010, 08:26:AM

Re: Illegitimate signature on claim

Hello Amethyst,

Maybe the purpose here was not clear. Yes, on these grounds alone, all you can do is be an annoyance to the claimant by forcing them to come back in an sign the statement of truth and pay for the pleasure (£75 or whatever) that you have to put up (note rule 4.3 of CPR Practice Directions 22).

In my case (and I think in a lot of people's cases--why this seems useful/relevant and so worth sharing) there is a lot more to the argument (as I noted). However, the problem I had and which others have I am sure is that you need to get in the door first to make your case...

What happened to me and I think to a lot of others is that through especially the use of the Moneyclaim system under CPR Practice Directions 7E, they incur a default judgment while you are not looking. This is made worse with the current system which allows the recipient 7 days to respond and appeal the judgment after it is served (whatever date that ends up meaning), but no note of 7 days is included on the judgment--meaning you pretty well need to already know rule CPR 23.10 by heart like a solicitor. Once you have this thing on your record and those 7 days have passed, it is much harder to fight.

I have strong arguments under both CPR 13.2 and CPR 13.3, but the problem with the former is that it is difficult in practise to make the case (for example PROVING that you did NOT receive a claim form... very hard to prove this sort of thing...) and the problem with the latter is that the court has discretion about whether to hear a case in the first place.

In this sense, what this issue of the statement of truth does is compel the court to reopen the case in the first place and give consideration to whatever defence you might have. I should say, strictly speaking, the court doesn't have to do anything... including follow the rules... (now that would be sarcasm :reindeer

but if they are not prejudiced (where my experience has been that they very well can be and were in my case) but if they are not, then if you are seeking a summary judgment (as I am) and they weigh up the evidence, both actual and potential, it seems (to me) incomprehensible that they would let the statement of truth be fixed (which contains ALL of the claimant's evidence) and not allow the defence to introduce their case. In other words, it gets you in the door--the court IS obliged to acknowledge your demand that the statement of truth be signed.

Whether a commercial court allows a company name on a form seems immaterial to the issue--this is about a statement of truth which does not seem the same sort of thing to me as accepting liability or responsibility in a commercial contract--but then maybe I am not seeing something here. But to be clear, companies and banks unambiguously CANNOT sign a statement of truth per se--only a person (manager, executive, etc.) can sign it. The ONLY exception for *representing* a case is a legal firm.

I looked around and I didnt find anyone ever took up this defence--but my suspicion is that the reason is because this clause in the definitions of legal representatives that includes license legal bodies (ie firms like Restons Solicitors)--so the assumption is then that as they can represent a claimant, they can sign accordingly. But my issue is not with representation, it is with signing.

Of course, maybe I've missed something in this.

Since Reston's Solicitors is one of the bigger firms doing this sort of work and causing a lot of folks a lot of harm, it occurs to me that they sign everyone's claim this way. That is why this issue could be helpful/useful to others.

BUT -- yes, it is important to have more to your case than just this. ALL THIS DOES IS LET YOU IN THE DOOR. It is an alternative route than the usual CPR 13.3 route for appealing default judgments, and instead uses the summary judgment procedure under CPR 24 and CPR 3.4.

If you are interested and/or think others might be interested, I will post the full case up, but it is around 25 pages not counting evidence--it ended up being altogether just under 100 pages. I am seeking damages as part of a counterclaim, but I need first to get in the door and remove a judgment and charging order.

Does that help clear this up?

Merry Xmas!
Pilot

**Amethyst** · 20th December 2010, 09:42:AM

Re: Illegitimate signature on claim

Ok, possibly an area to look at for you :-

''The overriding objective demands that relatively minor procedural errors should not be regarded as incurable''

Where a statement of truth has been completed incorrectly (Law v St Margarets Insurances Ltd 2001) , the overriding objective means that a party should generally be allowed to put matters right rather than being struck out.

Originally posted by Law v St Margarets case summary

'' the statement of truth filed in support of the application was not signed by an individual solicitor within the firm, but purportedly signed in the name of the firm itself. The district judge dismissed the application.''

Was an application rather than a claim, but the principle of statement of truth is the same (IMO)

In Law v St Margarets Insurance Ltd [2001] EWCA Civ 30, LTL 18/1/2001, the Court of Appeal
allowed judgment in default to be set aside despite the defendant’s solicitors’ procedural
errors in failing to file an acknowledgment of service and in failing to ensure that the
statement of truth in relation to the evidence in support of the application was signed by the
right person. The overriding objective required that the default judgment be set aside in order
to enable the merits of the defence to be determined.

http://www.oup.com/uk/booksites/cont...99207213/ch_20

I can;t find the actual judgment I'm afraid. But the basis was that it was a 'menial' error and should be allowed to be corrected.

**Amethyst** · 20th December 2010, 09:44:AM

Re: Illegitimate signature on claim

I am not sure that this will be enough to get the judgment and CO set aside, so yes, I would be interested to see the full case.

**ERD** · 21st December 2010, 06:35:AM

the larger claim/defence I.

Gmorning Amethyst!

Your other case cites are very helpful - and yes, I wouldnt normally expect a case to set aside for just these grounds. First below is just the contents, case summary, then the case to be forwarded. I will share the further arguments and so on if you are interested, but I will need to cut out names and so on--and as you can see it will get long. Okay, here it goes:

Contents
A. Case Summary 2
B. Case to be Forwarded 3
I. Summary Judgment to Strike Out Claimant's Claim 3
II. Summary Judgment for Compliance with DPA(1998) §7 6
III. Grounds for Granting of a Hearing under CPR §13.3 7
IV. Eventual Defence 8
V. Charging Order 9
VI. Expurgation of Default from Defendant's Credit Record 10
VII. Costs, Compensation and Damages 11
C. Chronology 13
D. Discussion 17
I. Service and CPRPD 7E §5.7 17
II. Promptness and CPR §13.3 20
III. When is a Default Judgment a 'Regular Judgment'? 24
IV. The Statement of Truth and CPRPD 7E §10 24
V. Enforceability, Proper Execution and CCA(1974) §127 25
E. Evidence 26
I. Statement of Truth 26
II. Evidence (with Index) 26
III. Referenced Rules, Directions, Acts, Statuary Instruments 59

Rules and Conventions
Rules marked in the Statement of Case refer to:

CPR – Civil Procedure Rules (current)
CPRPD – Civil Procedure Rules Practice Directions
CCA(1974) – Consumer Credit Act of 1974
CCA(2006) – Consumer Credit Act of 2006
HRA(1998) – Human Rights Act of 1998
ECHR – European Convention on Human Rights
ESR(2007) – European Service Regulations No.1393/2007
CCR(1983) – Consumer Credit Regulations S.I. 1983/1569
UCTA(1977) – Unfair Contract Terms Act of 1977
COA(1979) – Charging Order Act of 1979
LSA(2007) – Legal Services Act of 2007
DPA(1998) – Data Protection Act of 1998
DPTG(2007) – Data Protection Technical Guidance, Version 3 from 2 August 2007 issued by Information Commissioner's Office

The referenced rules, directions and statutes are provided for convenience at the end of this document. Evidence referenced in the Statement of Case are noted as follows:

E# – Evidence provided herein and indexed by number (#).
E – Evidence that the defendant intends to make available at a hearing.
ER – Evidence available in principle or on request of the court.

EC – Evidence sought through discovery of the claimant.
ES – Circumstantial, supporting evidence on request.
EA – Witness affidavit.

A. Case Summary
In 2008-2009, the defendant suffered from a serious illness and a concurrent collapse in the real estate market that resulted in loss of all income, severe financial hardship and alleged arrears to the claimant and other creditors. Through the summer of 2009, the claimant and defendant negotiated the facts of the account, and the claimant, acknowledging the defendant's responsible efforts and unblemished payment history, made an offer for a full and final settlement to which the defendant agreed in principle, subject to a practical delay to enable the defendant to sell assets for reasonable value.
On 30 September 2009, the claimant registered the account as in default, directed their solicitors to initiate legal action and ceased to negotiate withoutnotice. The defendant thus remained ignorant of this development until December of 2009 when the claimant was under obligation to inform the defendant of the pending suit. The defendant, following the claimant's solicitor's advice, waited for a claim form to be served, but the summons was not received until after a default judgment had already been issued on 16 December 2009. The defendant was unable to respond appropriately due to unfamiliarity with the British courts as well as continued confusion, health issues, hardship and other legal and financial obligations. The defendant then also proceeded to accept the terms of a sale for well under market value due in great part to the suit filed and subsequent court order issued in default.
The defendant, according to his abilities and practical priorities, attempted to apprise himself of the relevant legalities and seek the advice of an affordable solicitor over the subsequent months. The claimant filed an application to enforce the aforementioned judgment through a charging order on 3 March 2010, and the defendant, upon becoming aware of these new proceedings in late April 2010, notified the court of his intent to appear at the hearing. However, on the direct advice of officers of the court, the defendant did not submit an application to set aside the judgment. Though the defendant was only able to see a solicitor for the first time on 1 July 2010, the court ruled that the defence would not be heard and confirmed the charging order at a 6 July 2010 hearing. The defendant, not wishing to make another procedural misstep, waited to file this application until he had had a second meeting with a solicitor on 17 November 2010 and had provided the claimant ample opportunity to produce formally requested documents.
Throughout the history of this case, the defendant has acted in good faith regarding the alleged debt and responded promptly and fully to the legal developments according to his abilities and circumstances. In contrast, the claimant has not shown good faith in these dealings nor complied with their legal obligations on several key points directly related to these proceedings. To date, the court has yet to consider the merits of either the claim or the defence. Moreover, the claimant has, since 8 December 2010, apparently rescinded any claim whatsoever.

[Ok--just got a note that the whole thing is too long for the comment to swollow, so I will post the case to be forwarded on another comment]

**ERD** · 21st December 2010, 07:12:AM

the larger claim/defence II. case to be forwarded

[note: sorry about the formatting errors--this resulted from crappy cut and paste--I went through and fixed some of them, but not all]

B. Case to be Forwarded
I. Summary Judgment to Strike Out Claimant's Claim under CPR §24.2 without a Trial

1. CPR §24.4 permits a defendant to seek a summary judgment without condition, and CPR §3.4(2) and (3), §24.2, §24.3(1), CPRPD 24 §5.1(2) and (3) and CPRPD 3A §1.2, §1.3, §1.4 and §1.7 provide the court with the authority and foundation for ruling accordingly.

1.1 The defendant contends that under CPR §24.2(a)(i) and (b), the claimant has no real prospect of succeeding with the case with respect to the grounds for which the defendant is seeking this summary judgment, nor is there any compelling reason why this issue should be disposed of at a trial, as the legal issues are unambiguous or secondary and the evidence, uncontroversial.

1.2 With respect to CPR §24.5 and CPRPD 24 §1.3(3), all the relevant evidence is either on file with the court, namely, the originally filed claim [E1] and a court transcript from a case hearing [E4.1], or was provided to the defendant by the claimant pursuant to a CCA(1974) §78 request, namely, the only known contract [E5.2] and two 'signed' statements of account [E5, E5.4].

1.3 While other evidence is referenced in further arguments, and copies of some of those items are provided with this application for the court's convenience, they are not material to the specific points addressed in this request for summary judgment, which is limited to the three primary arguments introduced in 2, 3 and 4 below and adjunctory argument 11 on p.9.

2. There are several fatal irregularities in the original claim:

2.1 The claimant failed to sign the Statement of Truth on the original claim [E1] as required and as argued in detail under D. Discussion: IV. The Statement of Truth... on p.24.

2.2 The claimant failed to provide the defendant's correct name as required by CPRPD 16 §2.6(a) or birth date as required by CPR §12.4(2) and CPRPD 12 §3.2, where such knowledge is and was readily available and demonstrably reasonable to expect, since this information was clearly noted on the contract provided by the claimant [E5.2] and credit report [E6, E6.1].

2.3 The defendant contends that these failures to comply with the basic rules and directions as noted above suffice under CPR §3.4(2)(c) for striking out the claimant’s claim in its entirety.

3. The claimant's putative claim [E1] was submitted under CPRPD 7E §5.2(1) and seeks payment of an overdue balance under a 'contract' dated 'on or about 06/11/2006 in the sum of 12653.30...' with particulars limited to account number 'xxxxxxxxxxxxxxxx' and reference to a 'Default Balance' from '02/11/2009' of '12592.58', and the claimant did not apparently intend to issue any further statement of case, since no explicit mention of particulars to follow is noted in any way as required by CPRPD 7E §5.2(2). However, CPRPD 16 §7.3(1) requires that a copy of the 'written agreement' upon which the claim is based be provided with the claim.

3.1 Following repeated explicit requests for information under CCA(1974) §78 and DPA(1998) §7, on 23 November 2010, the claimant belatedly produced a true copy of a signed contract from 20 October 2006 [E5.2] and a 'signed' statement of account (no. 'yyyyyyyyyyyyyy') [E5.4] without further details of the alleged debt or notice of default, though both had been expressly requested, whereas the defendant disputes, and always has, any such sum as claimed.

3.2 On 8 December 2010, the claimant sent a second, seemingly identical true copy of the contract and another signed statement of account [E5], this time for a recognizable account number ('xxxxxxxxxxxxxx'), but the balance owing and minimum payment due are both '£0'.

3.3 None of the information submitted on the putative claim[E1] is corroborated by the contract [E5.2] or statement of account [E5.4]; neither the date of the contract nor the account number nor the alleged amount owing nor the status of the account (i.e., 'in default' or otherwise) nor even the defendant's proper name or birth date. The only consistent information appears to be the account number on the claim as compared to that on the second state of account [E5.5], which shows the '£0' balance owing. Therefore, the defendant contends that the claim exhibits the sort of comic standards exemplified in CPRPD 3A §1.4(1) and/or (3) and so lies within the purview of CPR §3.4(2)(a).

3.4 The foundation of any eventual claim by the claimant is the contract [E5.2], but that contract is and was, strictly speaking, unenforceable by the court under CCA(1974) §127(3), §65(1) and §61(1) as argued more fully in point 11 on p.9. As CPRPD 3A §1.7 appears to be directly concerned with this eventuality, it lies within the purview of CPR §3.4(2) as further grounds for the claim to be stricken from the record in its entirety.

3.5 The defendant does not contend for the purposes of a summary judgment that CPR §3.4(2)(b) also applies to this demonstrably vexatious claim, but he does wish to present more detailed arguments and evidence in an eventual hearing to demonstrate that the claimant had knowledge of, reason for and intent to filing this spurious claim in the manner and according to procedures that they did, which was without due regard for the court and its purpose. Naturally, the defendant would carry no objections to the court ruling on its own initiative as it deems appropriate.

4. CPR §13.2 requires the court to set aside a wrongly entered default judgment due to a lack of compliance with CPR §12.3(1), (3) or if the 'claim was satisfied before judgment was entered':

4.1 There was no unsatisfied claim on the date of judgment, because the putative claim failed to achieve the minimal standards of a lawful claim as contended above in arguments 2 and 3, and, indeed, the second statement of account [E5] provided by the claimant suggests either that the account always had been satisfied, or that it was exactly and coincidentally £561 less interest in arrears at the time of the default judgment (i.e., the sum of the defendant's payments to the claimant since the default judgment was issued).

4.2 Where the court might rule on its own initiative at the present date to adjust the putative claim so that it is consistent and signed, the defendant would respectfully ask the court to consider whether the claim had not transformed so significantly, that the default judgment would be, for all practical purposes, being(re-)issued at a time after the defendant had already applied for a summary judgment under CPR §3.4: whereby the court would be compelled to set the ruling aside under CPR §13.2 for not complying with CPR §12.3(3)(a). If the court finds this reasoning amusing, the defendant would very respectfully refer to point 4.3 below and its arguments addressing a very related (unjust) legal paradox that has ensued in this case.

4.3 The judgment on 16 December 2010 was issued before the required 14 days allowed for acknowledgment of service had passed as required by CPR §12.3(1). However, while this is trueinactuality, there are significant issues related, firstly, to its evidentiary demonstration and, secondly, to its technical significance under the law; both matters are taken up in greater detail in D. Discussion: I. Service on p.17.

4.4 With respect to any and all judicial consideration previously given to the merits of the case, as wholly contained within the very short proceedings of the charging order hearing on 6 July 2010 [E4.1], and any lingering doubts the court may have in this regard:

4.5 The defendant would like to bring COA(1979) §1(5) to the attention of the court, which requires that the court consider 'all the circumstances of the case' with particular emphasis given to the 'debtor's personal circumstances' and any eventual prejudice afforded by the charging order to other interested parties. The defendant respectfully notes that the court failed to do so in this instance and, moreover, refused to hear the defendant's oral and written objections related to these matters, as evident in the transcripts [E4.1] and as detailed in point 12.7 on p.10-11 under V. Charging Order.

4.6 The defendant respectfully acknowledges the practical difficulties that face the court on a daily basis, but he would also like to draw attention to the claimant's responsibility in the unlawful execution of this charging order as also addressed in point 12.9 on p.11 under V. Charging Order. However, the defendant is not seeking a summary judgment regarding these matters at present beyond those explicitly noted herein.

5. Therefore, for these numerous reasons referenced in points 2.2, 3.3 and3.4, under CPR §3.4(2)(a) and (c) and in a summary judgment under CPR §24.2(a)(i) and (b), the defendant respectfully requests the court to strike out the putative claimant's original claim in its entirety and set aside the default judgment;

5.1 And where the court regards the claim as totally without merit as contended herein, that the court record this fact as required under CPR §3.4(6)(a);

5.2 And where explicit action is necessary as regards CPR §70.6 and the cessation of the enforced charging order, that such orders be issued as needed;

5.3 And where the court finds fault in the defendant's conclusions to point 5. above, the defendant respectfully requests that the court give due consideration to the arguments in 4.1, 4.2 and 4.3 to set aside the default judgment as required by CPR §13.2;

5.4 And should the court rather determine that the default judgment is lawful, the defendant respectfully requests that the court give due consideration to the arguments in 4.4 and 4.5 and set aside the charging order under CPR §3.4(2)(c) for not complying with COA(1979) §1(5) and with further regard given to the defendant's request under CPR §13.3 for a hearing as explicated on p.7 under III. Grounds for a Hearing.

5.5 However, the defendant also respectfully requests that a hearing for a counterclaim be in any case allowed to proceed with regard to related matters, including all costs belonging to this judgment and any other associated with this case, or advise the defendant of an acceptable, alternative course of action per CPR §24.6(b) and CPRPD 24 §10.

Items E1, E4.1, E5, E5.2, E5.4, E6 and E6.1 are indexed in E. Evidence on p.26

[more to come if anyone is interested]

**Amethyst** · 21st December 2010, 10:39:AM

Re: Illegitimate signature on claim

The judgment on 16 December 2010 was issued before the required 14 days allowed for acknowledgment of service had passed as required by CPR §12.3(1).

I presume that is meant to be 2009, but anyway, that is your strongest argument for the judgment to be set aside if it is true. What date was the claim form issued and served (you have copies of it now?)

That should have been enough to set aside the default judgment and allow you to defend/offer to pay - that would have been before the charging order though. Charging order would be a given on a forthwith judgement.

What did your solicitors advise at the time ?

You mention sale at below market value?

How does that come in if you have a charging order on your property now - or is that talking about other properties being sold to repay the £12k debt ?

I think you are clutching at straws a bit. I would go in much simpler with a set aside application for the default judgment because you didnt receive the papers then enter defence/offer (if there is a true defence - in that you dont owe the money - not in that an account number is wrong or the signature is the wrong form etc )

The Judges won't enjoy being told the CPRs and tbh reading your case is hard work with all the references and the actual reason for the defence is kinda hidden within it.

Anyhow first bit - if true date wise, is procedurally wrong, and good reason for a set aside to enable you to start over with the defence/offer. Also that you didnt receive papers.

**Amethyst** · 21st December 2010, 10:45:AM

Re: Illegitimate signature on claim

Right, just found a simpler description of your case which is a bit easier to follow. Phew lol.

I think you have become a little caught up in the minute detail of the legalities of the case and there is no need. You have a good case for a set aside without worrying about those parts which seem, in your statements, to form the main part of the case, when they should in fact be the, 'and also's'

Can you outline (in same manner as you wrote below) the exact status of the case at the moment - whats been done to date and the dates of the original claim - and what you believe your next step needs to be, please

I had in been in correspondence with MBNA and we had in principle agreed to a final settlement of 30% on the about £11K I (allegedly) owed. I was in process of selling a little land I had to raise the capital, and while I was not looking, and without telling me, they handed the account over to their solicitors, "Restons", about whom I have nothing nice to say.

So I received a letter stating that I should pay up fully and completely immediately or they would seek redress in court. That was September of 2009.

Now, as it turns out, they also registered my account as defaulted on September 30, 2009, but I only learned of this much later. Importantly, I was never sent a letter or informed that my account was in default. This is important - it is one of the arguments I am in the process of using now (Nov. 2010).

Anyhow, unaware of what was going on, I wrote to them in November that I was able to settle the debt. However, they now refused the 30% offer MBNA had made earlier... and indeed, they had submitted their paper work to the courts. So I waited to be served and prepared myself for the famous English legal system.

Unfortunately, the notification of the court date - December 16, 2009 - did not arrive before December 11th at the soonest (this is an estimation, since I was not there to receive it... After all it was Xmas and I had gotten back together with my wife, and there is more to life than paying bills and cursing at banks...). And the court date coincided with my wife's Bday... So my Xmas present was to find that not only had the court date come and gone, but a judgement in default was then sent to me somewhere around January 13. Actually, I did not even understand at that point what had happened, because I could not believe that it was legal to get a ruling without having an opportunity to present a defence...

In fact, I began reading up on what was going on, but it was not until I received another hearing notice in March for a charging order to be placed on my house that I finally understood what had happened.

Okay, I will continue this story with all the legal nitty gritty later..

Read more at: Fighting the good fight.... and maybe winning! - Legal Beagles Consumer Forum

**ERD** · 22nd December 2010, 11:48:AM

Re: Illegitimate signature on claim

Originally posted by Amethyst View Post

The judgment on 16 December 2010 was issued before the required 14 days allowed for acknowledgment of service had passed as required by CPR §12.3(1).

I presume that is meant to be 2009, but anyway, that is your strongest argument for the judgment to be set aside if it is true. What date was the claim form issued and served (you have copies of it now?)

That should have been enough to set aside the default judgment and allow you to defend/offer to pay - that would have been before the charging order though. Charging order would be a given on a forthwith judgement.

What did your solicitors advise at the time ?

You mention sale at below market value?

How does that come in if you have a charging order on your property now - or is that talking about other properties being sold to repay the £12k debt ?

I think you are clutching at straws a bit. I would go in much simpler with a set aside application for the default judgment because you didnt receive the papers then enter defence/offer (if there is a true defence - in that you dont owe the money - not in that an account number is wrong or the signature is the wrong form etc )

The Judges won't enjoy being told the CPRs and tbh reading your case is hard work with all the references and the actual reason for the defence is kinda hidden within it.

Anyhow first bit - if true date wise, is procedurally wrong, and good reason for a set aside to enable you to start over with the defence/offer. Also that you didnt receive papers.

Oh dear... Well, yes, that would be 16.12.09. Damn I hope the judge is as quick as you.

Strongest argument? Really? Not wishing at all to disagree, for the simple reason that I don't know what counts as a good argument in law. However, this is not what I have been told on other sides--including both solicitors I spoke with. In fact, everyone I talked to says 'good luck' on that. And when I did some reading, it seems that precedent says the same--because the issue turns on 'deemed service' in the first case, and on an almost impossible to prove claim of non-receipt in the other.

However, all the advise I have received thus far (not counting your own) has been extraordinarily bad... I don't want to impugn either solicitor I did speak with, but... there were a lot of points that they just didn't get at all (which I only discovered myself after a lot of reading).

Anyhow, I am surprised that the fact that claimant has rescinded any claim whatsoever doesn't count for more! Or that the contract is strictly speaking unenforceable. Or that the original claim doesn't even make sense. If I cannot fight this thing, it seems to me that no one under any circumstances could fight any default judgment.

So let me ask you, under which circumstances could one try to set aside a judgment ever? You note that if procedure was not met with respect to receiving a claim form, but how can one prove such a thing? It looks like a catch 22...

The property I sold was other property, not my home.

Anyhow, I am sure you are right that I have hashed my application here--I am not a solicitor, and I don't know the game. I have read the laws and done my best to show how they seem to apply based on my reasonable understanding of English. I know that when I tried a less 'legal' approach, the judge refused even to hear me.

I will sign off here a little frustrated that I am apparently clutching at straws. I really hope you are wrong--not just for me, but for everyone. Because if this case doesn't fly, then the law ceases to have meaning and it just comes down to randomness and personal connections. Very unpleasant and frustrating to contemplate.

Pilot

**ERD** · 22nd December 2010, 12:09:PM

the larger claim/defence IV. defence

Section II seeks to get a summary judgment to compel MBNA to comply with a DPA SAR request. Section III. turns to arguments around CPR 13.3 for why I should be granted a hearing--and this then references further arguments and a rather long story--because it is bloody hard to show or demonstrate that you didnt get a claim form in time. The section below is a framework for an eventual defence against the judgment if I got a hearing--it is framed around three arguments which refer back to the arguments in Section I where I am just trying to get this thing thrown out with a summary judgment.

My training is as a philosopher, and I can say with some authority that if such references as 'equal footing' are to have any meaning whatsoever, then this case has to have merit--because all the claimant has managed to do is get lucky that I didn't get the claim form in time and that I didn't know how to respond to it when I did. Their claim has ZERO merit (I reproduced the entirety of it in the first section).

IV. Eventual Defence

8. Any extended defence is quite possibly hypothetical only, but the defendant will proceed as if the claim had been sufficiently well executed:
8.1 The defendant refers to points 2, 3 and 4 in I. Summary Judgment... above.
8.2 Based on the putative claimant's case as it presently stands, the defendant would have no other option than to plead extreme embarrassment, as the particulars would fail to comply with CPR §16.4 as well as CPRPD 16 §3.1-4, §3.6 and §7.2-5, just for a start.
8.3 The claimant's case was and is significantly flawed on both procedural and moral grounds that suggest a strategy of undermining the normal course of justice through professional negligence and manipulation of legal minutiae without due diligence which, while not prima facie meeting criminal standards, should bear on a 'balance of judgment' that now, arguably unjustly, begins with the onus of proof upon the defendant.
8.4 In particular, several further circumstantial facts and coincidences will (pursuant to a trial) be presented in D.Discussion to illustrate, if not demonstrate, the putative claimant's preference for making free use of the courts to win unlawful gains, rather than negotiate genuine debts in good faith. Implicit efforts were made not to enlighten the defendant of the proceedings, though he was known to be recovering from long term illness and having a difficult time coping; where the apparent objective was a judgment won in default rather than a hearing with an attentive judge, so that a subsequent application for enforcement could be speedily 'requested' and followed by a charging order that was not, and seldom ever is, successfully defended. This then resulted in a situation where the defendant, unable to afford the advice of a solicitor, has no normal legal recourse to address a defacto ruling that, strictly speaking, had been conceived by no person in particular, for an apparently arbitrary, changing and entirely unfounded claim, associated with an unknown account and, moreover, without any explicit judicial consideration ever having been given to the merits of either the defendant's or the putative claimant's cases.
8.5 It is only with this context in mind that the defendant is seeking compensation for related damages and distress over and above the explicit costs associated with this case.

9. The alleged debt is not and was not enforceable as stipulated in CCA (1974) §87(1) because:
9.1 The claimant did not provide a 'default notice' in a form and of a manner as required by CCA(1974) §88(1) and (2) as amended in CCA(2006) §14 requiring a claimant to give 14 days notice and opportunity to a debtor to remedy an alleged breach of contract.
9.2 The claimant did not permit the defendant to address any alleged breach of contract as provided for in CCA (1974) §89, where the claimant's submitting of a default notice to a credit referral agency on 30 September 2009 does not qualify with respect to CCA(1974) §87-89, and the defendant had no knowledge of it until 13 April 2010 [E6].
9.3 Furthermore, the claimant is not and was not entitled under CCA(1974) §76(1) to enforce any term of the agreement without first providing a 7 day warning in prescribed form.

10. The alleged debt is not enforceable under the terms of CCA(1974)§78(6)(a) because:
10.1 The claimant has not responded to the defendant's formal and correctly initiated requests in a timely, accurate and satisfactorily complete manner as required by CCA(1974)§78(1) [E3.1-E3.41].
10.2 However, the matter is perhaps moot if the claimant's second signed statement of account [E5] is acknowledged: it reads a balance owing of '£0'.

11. CCA(1974) §127(3) clarifies that for a contract to be enforceable under CCA(1974) §65(1), it must be 'properly executed', where:
11.1 CCA(1974) §61(1)(a) stipulates that a properly executed contract contains: a signature of the creditor or a representative, an explicit credit limit, the charged rate of interest and the terms under which the debtor may discharge the debt.
11.2 CCA(1974) §61(1)(b) requires that it embody all the terms of the agreement.
11.3 CCA(1974) §61(1)(c) requires that the terms of the original contract be readily legible.
11.4 However, the contract [E5.2] meets none of these conditions, with the single possible exception of point 11.3, provided the reader has a magnifying lens to hand.
11.5 Moreover, CCA(1974) §127(4)(a) makes clear that the court shall not issue an enforcement under CCA(1974) §65(1) if there is non-compliance with CCA(1974) §62 or §63, which there was not.
11.6 Similarly, CCA(1974) §127(4)(b) implies the same where there is non-compliance with CCA(1974) §64(1), which there was not.
11.7 Note: CCA(1974) §127(3) and (4) were repealed by CCA(2006) §15 subject to enactment beginning 6 April 2007 in CCA(2006)(Com.2 TP)(Sched.2) but which shall not apply to contracts preceding this date as noted in CCA(2006)(Com.2 TP) §4-5, where the contract [E5.2] is dated 20 October 2006.
11.8 Further precedents and evidence are argued in D. Discussion: V. Enforceability... on p.25.

**ERD** · 22nd December 2010, 12:31:PM

Re: Illegitimate signature on claim

I guess we are complicating this whole thing with several threads. Well, maybe it does make some kind of sense...

I did add another piece of the story onto the thread above--but here is the really basic English version of what happened:

I had a credit card with MBNA for several years, which I used and quietly let them overcharge me for all sorts of nonsense.

I got sick and somehow (seriously a mystery) the credit card shows up owing lots of money. Do I owe them anything here? I mean ethically, not legally. If a friend had lent me money, I would say yes. In this case, they have charged me a great deal of money and I don't think the balance is right--but they refused to send me that information so that that could be determined. I honestly thought I had a few thousand owing, not 12 thousand. However, I had a lot on my plate, and I was settling other debts, so while MBNA was being reasonable, we discussed the debt and they made an offer for 30% full and final payment.

They then in the fall of 2009 went and gave it to their solicitors, who made a claim, and all of this without any notification. I think Restons deliberately avoided telling me information about their claim, which they filed at the end of November just after a postal strike and right before Christmas and during lots of bad weather. Coincidence? Yes I have a lot more specific evidence to bring to court about all this, including the time it took to receive letters from them--meaning there was a remarkable gap between the dates on letters and the actual receipt, but not in all cases, suggesting further dirty tricks. They requested a default judgment just as soon as they could based on the deemed service date without consideration for the fact that I had spoken with them on the phone about the case and was very clear that I had not received a claim form.

Anyhow, the claimform did get stuck in the post and I didn't get the thing until after the judgment had been issued. And I had no clue about a lot of things with the law here in the Uk and a lot of serious problems to tend to that really slowed me down.

The charging order, which they did as quickly as they could, I objected--but of course no one ever wins against a charging order--that is the rule of thumb I have heard from solicitors and from reading at this point--it just doesnt happen.

So that is how this whole mess came about. And while pushing them to provide information--it was only when I quit sending CCA and DPA requests to both the solicitors and MBNA that MBNA finally responded. In other words, I think Restons was saying to MBNA--'Dont respond to these requests'--of course not in such explicit words, that is not how this sort of thing is done.

Sketching out this whole thing is going to be very hard to do--but I think I can do it if I have the attention of a judge for long enough--what becomes clearer and clearer as you see all the different steps and events is that Reston's plays a very dirty game. And if I can show this, I might just be able to bloody their noses, which is what I am really after here. And yes, the matter is personal. I am bloody ****ed at these people--they need to have their license revoked! Which will be stage two (and yes I have been in contact with the OFT and IST--but I cannot pursue a complaint at the same time that I am in court, unless maybe it is as defendant, but I need a yes first from a judge on that).

Okay, now I am ranting, so I will stop. Yep. Bloody ****ed am I.

**Amethyst** · 22nd December 2010, 15:20:PM

Re: Illegitimate signature on claim

Plenty of people have successfully set aside default judgments on non receipt of documents, however I agree that it is weaker than the argument I thought you had put forwards - that the default judgment was entered BEFORE the 14 days were up for acknowledgement of service ? Can you list the dates for me please just for my own peace of mind really..

DATE OF ISSUE CLAIM FORM
DATE OF DEEMED SERVED CLAIM FORM
ACKNOWLEDGMENT OF SERVICE DUE DATE
DEFENCE DUE DATE
DEFAULT JUDGMENT DATE

The solicitors you spoke to - were they solicitors you use regularly/know well etc or claims farmer types? (or in between)

Plenty of different reasons to set aside - but it should have been done as soon as you realised you hd the judgment - certainly when you had the charge order hearing - thats not saying the time has passed entirely - but I'm not sure what you put forwards ref the charging order hearing

Unfortunately, the notification of the court date - December 16, 2009 - did not arrive before December 11th at the soonest

Claim was dated end of November (what date) I assume by 'court date' you mean the date acknowledgement had to be in by ?

**Amethyst** · 22nd December 2010, 15:27:PM

Re: Illegitimate signature on claim

Simple fact sheet Debt Factsheets - How to set aside a Judgment in the County Court

**ERD** · 23rd December 2010, 12:36:PM

Re: Illegitimate signature on claim

HI Amethyst--

Yea, I can tell all this by heart now!

BTW--I see from your quote that I misspoke--I did not get a date for a trial on or after 11 December--that was simply the 'Moneyclaim Claim form'--part of the problem is that there was NO date of any hearing on it. I was still expecting something with a hearing date well into January 2010. See below for details on that.

Claim Issue date: 25 November 2009
Deemed Service (CPRPD 7E 5.7):+5 = 30 November 2009
Acknowledgement of Service Due date: 14 December 2009
(note--this is my best guess based on rules--i.e., claim form reads 14 days for acknowledgement and is deemed served per above)
Defence Due date: *if* I had acknowledged service, it would have been *another* 14 days--not sure if that would count from the date of acknowledgement or the end of the 14 days for acknowledgment.
Default judgment: 16 December 2009

Note that the default judgment was 'requested' perhaps as early as the 14 or 15 December--this I do not know, but I assume even though a 'request for default judgment' does not actually get reviewed by a judge, it might still have some kind of process it needs to go through.
Here is another date of interest:
Transfer to Norwich Bulk Centre for Enforcement: 18 December 2009. Note that the transfer must have been immediately filed, since that did require a judge to sign off on.

During the aftermath, I tried to piece together what had happened. I did not even know about the judgment until sometime in January when I received it. However--and partly because I am not used to the English system--I did not understand that it was a formal judgment. Because I was still expecting a 'summons' which is to say that I did not even know a judgment was possible without a judge or a hearing or at least a summons to a hearing. Note that this is all only possible under the Moneyclaim Online system which uses the CPR Pract Dir 7E .

Anyhow, part of what really peaved me here was that the solicitors (Restons) had sent me a letter *dated* 23 November 2009--which was the same date that I had faxed them and written them about the account--in other words, they were I think obliged to say that they had initiated proceedings. HOWEVER, I did not get this letter until sometime in December... And I telephoned them in response--asked specifically how this process worked. They said 'expect a claim form'--point is that I did not know what to expect, but it was already well into December...

The December 11 date is about when I went away for roughly a week (Xmas and all...). At that point, I had received no claim form. That is how I know it didnt arrive in time. When I returned after 16 December 2009 (a bday of someone important to me--part of the reason for the trip) the claim for had arrived, but I think it was after 18 December when I actually opened it, though before Xmas. The reason is that I tried to access the Moneyclaim website, but the case had already been default judged and sent on to Norwich for enforcement. That is my guess--I didnt know that at the time--I only received the documents later in January.

Really, perhaps I should send you a copy of the whole statement of case? There is too much to post it all up here just now (though I had in mind to share the whole thing eventually for other's benefit later--especially after seeing what worked and didnt work), There are reasons I outline for why I didnt respond to the issue sooner than now.

As it happens, the statement of case and application just got returned to me by the courts due to a clerical error. I spoke with the court manager about it and I am resending it shortly--but I am inclined to listen hard to what you say here and make changes accordingly. Though please do not let this take from your Xmas...

On the solicitors I spoke with--both were part of a free law clinic for destitute folks like myself. One did specialize with charging orders... but... well, I don't like to criticize until there is really cause, I appreciate the spirit of their help even if they were not perhaps so sharp on the details (in other words, Restons... they DO need to be knocked down a few notches)

For the charging order hearing, I had a 20 page written defence, which was not read or heard. I have the transcripts from the hearing and it still peaves me to read it. The written defence lacked the legal notes I have put in here, but then I had not spent two months reading the CPR at that point (or the other acts that are relevant)--I was just stating my case in plain English.

Anyhow--

Wishing you and anyone reading a very lovely holiday, even it is a bit snowy and cold this year.

Illegitimate signature on claim

Illegitimate signature on claim

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