**DISCONTINUED** Restons Letter advising withdrawal of set aside claim

[monk_fish_]

Set Aside Granted...what next?

Hello all,

Yesterday I had Judgment in Default set aside. Thank the GOds.

The Judge accepted my claim that no default notice was issued, and allowed me to defend the claim on this basis.
I managed to beg a letter from the OC which stated they had no record of a DN and that GREATLY helped.

I must now submit a defence restricted to this issue of the DN by the 19th Feb. (any help appreciated)


My query relates to what happens next.

Can I now send a CPR disclosure request to the DCA? I could not do this before because Judgment was already awarded. Now it is reversed, is that possible? Is the Claimant obliged to respond and can it still provide a block to their claim?
(After 6 months of wrangling they have been able to produce diddly squat.)

I am aware they may issue a new DN. And restart the claim. But if a previous DN is uncovered and is invalid.....can they re-issue a valid DN and continue the claim..or is it dead in the water at that point?


Many many thanks to ALL who helped thus far..........(NEM, Mystery1, Flaming Parrot, PT, Amethyst, especially)......i wish i could buy you all a drink.


Posting the Defence below in the morning. Do I need to add anything?


IN THE COUNTY COURT AT KETTERING CLAIM NUMBER xxxxxxxxx
DATED : 13/02/2015

BETWEEN :
ARROW GLOBAL LIMITED CLAIMANT
and
MR. MONK FISH DEFENDANT



DEFENCE

1. A creditor must under section 87(1) also sections 76(1) and 98(1) of the CCA 1974 serve a default notice before they can demand payment under a regulated credit agreement. The prescribed format for such a document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations and the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

1. The Defendant submits that no default notice in the prescribed format has been served and the Claimant had no right to seek enforcement through the court.

Statement of Truth:
The Defendant believes the statements of fact in this Defence are true.


Signed ……………………………………

Date …………………………………....

[monk_fish_]

Help ...DN Re-issue issues....

Hi. All.
I just had a Default Judgment set aside based on the Defense that the DN was never issued. There is no evidence of an original DN
The case will now proceed to the small claims track.

I am aware the DCA may now issue a DN as the Legal assignee. Can they do this before the next hearing? Or do they need to conclude this application and then restart a with a new claim from scratch.

Is it time to negotiate a settlement?

Many thanks.
Monkfish

[nemesis45]

Re: Help ...DN Re-issue issues....

Time to get a defence to the original claim.

nem

[Don Quixote]

Re: Help ...DN Re-issue issues....

We could do with a full history of your case, please, because as nem says, you will now need to defend this claim. It simply goes back to the point at which the claim was issued, and unless the judge’s order says different, you would normally be given 14 days to file a defence.

There’s a bit of a catch-22 situation, because your current defence is now that there was no default notice (same as your set aside app), so I imagine they will want to withdraw and reissue. Let us know what the court said about defending.

Please let us know what the original claim was for.

Yes, they can reissue a DN, but it would now be for the total arrears. They would have to provide you with the chance to comply with the requirements of the DN first, though.

Was a default recorded with the CRAs? Note that this cannot be changed or updated to the new DN date – recording a default is not the same as issuing a default notice.

[monk_fish_]

Re: Help ...DN Re-issue issues....

We could do with a full history of your case, please, because as nem says, you will now need to defend this claim. It simply goes back to the point at which the claim was issued, and unless the judge’s order says different, you would normally be given 14 days to file a defence.

There’s a bit of a catch-22 situation, because your current defence is now that there was no default notice (same as your set aside app), so I imagine they will want to withdraw and reissue. Let us know what the court said about defending.

Please let us know what the original claim was for.

Yes, they can reissue a DN, but it would now be for the total arrears. They would have to provide you with the chance to comply with the requirements of the DN first, though.

Was a default recorded with the CRAs? Note that this cannot be changed or updated to the new DN date – recording a default is not the same as issuing a default notice.

Ok. So the full history is already on here. I started a new thread because it is essentially a new chapter..post set aside.

I have already submitted a Defence which is essentially there was no DN. The judge ordered that my Defence be limited to this reason, since she dismissed my arguments for unenforceability and improper assignment. (The judge ordered I submit my Defence within 7 days of the set aside hearing.)

The basis of the query, is whether the Claimant's action is terminated when they cannot provide the DN.
Do they have to terminate and start with a fresh claim..AFTER issueing a DN.
OR can they intervene and issue a DN before the next hearing..thus rendering my Defense to the initital claim void?

I will worry about a 2nd action later, if that is the case.

Can anyone clarify?

[Don Quixote]

Re: Help ...DN Re-issue issues....

I think it would take a second action, as there was no DN – and therefore the right – to begin this claim.

In Brandon v American Express, Lord Justice Gross stated that Amex “should not have been granted summaryjudgment, so that it will have to start again or depend on its subsequent termination under s.98A ofthe Act.”

I imagine the creditor has made no representations regarding s98A (non-default termination), hasn’t pleaded it, and so can’t rely on it. In short, as in Brandon, they can’t change horses mid-stream.

How long until the claimant needs to respond to your defence?


http://legalbeagles.info/wp-content/...tober-2011.pdf

[Don Quixote]

Re: Help ...DN Re-issue issues....

Most of your queries were answered in this thread of yours...

http://www.legalbeagles.info/forums/...tor&highlight=

...especially post #16, an excellent one by ncf355.

Why did the judge tell you not to address issues around the enforceability of the CCA? Given she acknowledged there was no DN (and you had evidence to support this), I imagine she is giving them a chance to withdraw and reissue a claim. Which is a bit unfair.

It would really help to stick to one thread!

[monk_fish_]

Re: Help ...DN Re-issue issues....

Most of your queries were answered in this thread of yours...

http://www.legalbeagles.info/forums/...tor&highlight=

...especially post #16, an excellent one by ncf355.

Why did the judge tell you not to address issues around the enforceability of the CCA? Given she acknowledged there was no DN (and you had evidence to support this), I imagine she is giving them a chance to withdraw and reissue a claim. Which is a bit unfair.

It would really help to stick to one thread!

Yes. Sorry about the mutliple posting. I got jumbled up earlier and I've kinda' shot myself in the foot.

Thanks for your reply. The Judge dismissed the other aspects of the defence ...saying the Assignment was in all probability fine, and she wasnt really prepared to entertain the idea that the Terms and Conditions werent present on signing. She was of the opinion "you signed it..and you must have been aware you were bound by terms and conditions".
Both points are mute if without a DN anyway. If as you say, the Claimant has to start over, then I should be able to plead a fresh Defence to a fresh claim, including demanding full CPR disclosure. I doubt the Claimant could comply with the disclosure request.


Not sure how long the Claimant has to respond, I was just given 7 days from the date of the hearing to submit my Defence. (19th Feb)
Small claims Directions Questionaire to be submitted by 6th March.

thanks again.

[Don Quixote]

Re: Help ...DN Re-issue issues....

I agree with your interpretation and understanding of this.

At a set aside, I’m not sure a judge should make judgments on other aspects of the case based purely on a pleaded case and no actual evidence. It’s an app for a set aside, not a mini trial. This is odd... and sounds like a judge with an agenda, as you imply.

However, as you have no CPR response to work with, it’s difficult to make specific pleadings. But I would have included a note to the effect that I would request a further chance to defend or add a witness statement upon receipt of other pleaded documents, just as you would in a normal ‘holding’ defence where pleaded documents have not been provided.

Do you actually have a copy of their original statement of case/PoC? Sorry, too lazy to scan your other threads

[monk_fish_]

Re: Help ...DN Re-issue issues....

[QUOTE=Don Quixote;520404]I agree with your interpretation and understanding of this.

At a set aside, I’m not sure a judge should make judgments on other aspects of the case based purely on a pleaded case and no actual evidence. It’s an app for a set aside, not a mini trial. This is odd... and sounds like a judge with an agenda, as you imply.

However, as you have no CPR response to work with, it’s difficult to make specific pleadings. But I would have included a note to the effect that I would request a further chance to defend or add a witness statement upon receipt of other pleaded documents, just as you would in a normal ‘holding’ defence where pleaded documents have not been provided.

Do you actually have a copy of their original statement of case/PoC? Sorry, too lazy to scan your other threads [/QUOTE


No worries. I appreciate the input. The whole thread chain is a little garbled anyway..my fault .
Here's the original POC. No mention of DN..but clear ref. to an Agreement.

I agree with you about the Judge. I thought that was wierd really.
Thought I was just there to show I had a case to plead...not to plead a case.



THE CLAIMANT CLAIMS PAYMENT OF THE OVERDUE BALANCE DUE FROM THE DEFENDANT(S) UNDER A CONTRACT BETWEEN THE DEFENDANT(S) AND NATIONWIDE DATED ON OR ABOUT 20/07/1999 AND ASSIGNED TO THE CLAIMANT ON 20/04/2010 IN THE SUM OF 7454.89 PARTICULARS A/C NO:- 449352818xxxxx DATE ITEM VALUE 03/03/2014 DEFAULT BALANCE 7454.89 POST REFRL CR NIL TOTAL:- 7454.89

[dan_1207]

Re: No default notice and no credit agreement. Set aside pending.

It's way past that. my defense has already been submitted in the first hearing. No prescribed terms on CCA and no evidence of a valid Default notice. Due to me submitting my defense late, the Judge gave the claimant 30 days to produce relevant documents and file an affidvit in response to my defense. They have failed to do so. This was in October.

There is no longer any record of CCA or Default notice with original lender, though I have copies of others issued at the same time which are both invalid. No prescribed terms on CCA. The Default notices issued at that time did not give adequate service time...which according to the appeal court decision in Ian Karl Robert Brandon v American Express Services Europe Ltd [2011] EWCA Civ 1187, cannot be considered De Minimus and invalidates the notice.

I want to know what happens if no documents are produced by the claimant to substantiate the claim. And how they can possibly hope to block my set aside application.

There is no doubt there was an agreement..because a card was issued and used...so there is proof of the debt. There is however no proof the agreement was valid. Nor is there proof any Default notice was issued at all, and certainly not one that complies with regulation.

If a defence was filed, why was judgment in default entered against you? As you sure it's default?

In any event, it may well be caught in court limbo (a big place!). Dealing purely with the litigation side of things, call the Court and ask what stage the file is at. If the Order gave the Claimant 30 days to do something and they have not done so, you are able to apply to have the Judgment set aside.

[monk_fish_]

Notice of Discontinuance

I have today received a notice of discontinuance.

DO I need to act on this, since there was a hearing scheduled in September to settle the case. Is it the claimants responsibility to notify the court?

How do I go about recovering my costs for this process now the Claimant has decided to discontinue?


Many thanks to all who helped!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

I am still jumping up and down and dancing around the living room!!!!!!!!!!!!!!!!

[MIKE770]

Re: Notice of Discontinuance

ring court and confirm they have been notified, cost?

[Kati]

Re: Notice of Discontinuance

Can you post up a redacted copy of the letter (or email it to me and I will kati@legalbeagles.info)

[Kati]

Re: Restons Letter advising withdrawal of set aside claim

I've merged your threads for you xx