LBA from Optima Leagal Services*WON* DISCONTINUED BY CONSENT*****

[Viano]

Wow Paul, I shall wait with baited breath.

Tanks again

Viano

[Movingon]

All you appear to be doing is putting off their claim against Viano - is this wise? I would be fighting for an anullment of the debt in total as if they now produce the documentation requested they will not only have irretrievably committed an offence in not supplying them on request, they will also be in contempt of court for not filing them with their initial claim! Also, if they don't have them, they will write to the Court and say that no further documentation is available... and therefore the Judge will ONLY comply with your request to strike out their claim. He won't remove the Default or anull the debt.

 

There is no way out of this for the Claimant, but your Defence does not ask for the alleged debt to be struck out... I think perhaps it should?

[pt2537]

All you appear to be doing is putting off their claim against Viano - is this wise? I would be fighting for an anullment of the debt in total as if they now produce the documentation requested they will not only have irretrievably committed an offence in not supplying them on request, they will also be in contempt of court for not filing them with their initial claim! Also, if they don't have them, they will write to the Court and say that no further documentation is available... and therefore the Judge will ONLY comply with your request to strike out their claim. He won't remove the Default or anull the debt.

 

There is no way out of this for the Claimant, but your Defence does not ask for the alleged debt to be struck out... I think perhaps it should?

 

 

28. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

29. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

erm i think it does ask for the case to be struck out .

 

if you feel any amendments should be made please feel free to offer suggestions as like i said this is a first draft

 

regards

paul

[pt2537]

Stonelaughter, are you proposing possibly we ask the court to use powers under s142 to declare the agreement unenforceable?

 

im interest to hear your thoughts for sure as ultimatley it would be better to get the debt written off for sure.

[The GodMother]

Well l thought the defence was a final draft but l am no expert on this type of thing.

 

It looks good to me Paul. I dont think there is any to add but as l said l am not expert.

 

Chrissi

[The GodMother]

Paul.

 

I have noticed in previous defences you have used something which has confused me.

 

For evidence or exibits you ahve say, ST1 or exibit ST1.

 

What does the ST mean and can that be changed to anything?

 

Chrissi

[pt2537]

Hi Chrissi

 

basically, its the persons initials that you use to refer to exhibits / evidence in letters or defences , thats the convention anyway

 

thats all it is

 

regards

paul

[The GodMother]

so if i was to produce enidence mine would be GM1 or GM2 etc?

[pt2537]

yep , well you would use your actual initials but youve got the gist of it

[The GodMother]

ok ty.

[Movingon]

PT - the defence you wrote asks for the Claim to be struck out - I meant the debt... if this defence is successful then yes, their claim will be struck out, but they will be free to come back again with a properly particularised claim. If you ask for the debt to be annulled, as well, they will NEVER be able to recover this debt, accomplished in one fell swoop.

[pt2537]

Hi ya SL

 

 

oh i see, sorry, i misread what you were saying

 

a declaration under 142 would be a thought,

 

ill add that to the defence in due course..

 

 

thanks again

 

regards

paul

 

 

[Edz11]

I thought that would be an abuse of process if they tried again. They can appeal against the original judgment, but they can't keep coming back to see if they get it right.

 

Annullment - isn't that for insolvency?

[pt2537]

I thought that would be an abuse of process if they tried again. They can appeal against the original judgment, but they can't keep coming back to see if they get it right.

 

Annullment - isn't that for insolvency?

 

 

Hello Ed,

 

they could not restart the same action on the same material facts thats my understanding,

 

yes i believe you are right that annullment refers to Bankruptcy proceedings

[Edz11]

Mornin' P

 

A nice tight "unless" order with a week's appeal/set aside period before the strike out comes into effect would seem to fit the bill nicely. I'd chuck in the s142 bit if it goes to trial.

[The GodMother]

What l thought was they could not take you back to court with the same evidence.

 

So with the same material facts. They dont have a cca but one has now appeared they can take u to court.

 

Chrissi

[Movingon]

I did not use "annullment" as a legal term - I used it as a term for making the alleged debt go away permanently.

[Edz11]

If the claim is substantially the same then the courts have determined that it is abuse of process. The issue has been tried and they lost. So if someone who loses they isn't happy then they should appeal. But that can only be on a point of law. The DCA's etc have been able to submit the briefest of possible POC's for years and have got away with it. It is now very important that they make sure all bases are covered before starting court action.

 

If they stumble across the agreement six months from now then the claim is the same - it is just the evidence that has changed which isn't enough to avoid "abuse of process"

[Movingon]

So if the claim's struck out the debt essentially no longer exists, even without a declaration to that effect?

[shane5408]

If the claim gets struck out it leaves further recourse for the creditor to bring the same action again, be it next time with a better particularised POC or a compliant agreement etc.

 

Pauls defence is good because it does not explicitly request the claim to be struck out, it merely covers all the bases. In cases like this where it is pretty clear cut my advice would be to allow the claim to proceed as the debtor has a complete defence. Once the case has run and the creditor looses they would be hard pressed to bring the same action again

 

regards,

shane

[shane5408]

Also if requesting judicial powers under 142(1)(b) you should also do so under s 14(1) & 14(3) of the DPA for removal of adverse credit data from 3rd parties, ie defaults etc

[Viano]

Hi Paul,

 

When do I file my defence, please, is it after they (the opposition) have had the fourteen days from the request for further information, sent special next day 12/12/07 delivery, which is on 27/12/07, or can we send it so it is received by the court on Christmas eve ?

 

By the way , having followed the thread, will the defence stay as was or will it be modified?

 

Viano

[Movingon]

When is your deadline to file a defence? I would file in person at the court at the last possible moment on that day to give them the maximum time to respond to your Pt 18 request; we all know that they are not going to respond. If they DO respond, but at the last possible minute, I would file a request at Court to extend the deadline for the Defence due to their tardy response to Process.

 

If you can't file in person I would send Special Delivery the day before.

[Viano]

Hi StoneLaughter,

 

The issue date of the Claim was 11 Dec 2007, I returned the acknowledgment on the 13th Dec 2007 so I don't have a date at the moment, have I ? AND I have just noticed that the 'Opposition' claims on the claim form a default notice was served on the Defendant on the 25/09/07, I have no knowledge of this as the only default notice was the one I sent a copy of to Paul

 

Viano

[Viano]

By the way, I can't get to N'ampton, don't have the money!!!

Viano