Arrow/Shoos claimform - old MBNA debt - settled by Tomlin - drydens now write saying pay us not Arrows?

[toxicdebt]

Phew!

 

Learnt a lot tonight.

[AndyOrch]

Okay then for now.....? Try not to let this consume your weekend...get out into the sunshine:wink:

[toxicdebt]

Thanks Andy, Yes my brain is full up now.

 

Good advice RE sunshine. Will do.

[toxicdebt]

Had a reply from the Court regarding the Claimants application for summary judgement. Seem they have succeeded in hijacking my strike out hearing this Friday...

 

"The Hearing of the claimants application for trial be adjourned and other will take place at xx:xxAM on the etc etc"

 

How are they going to go about this as they are debarred from giving oral evidence?

[AndyOrch]

Purely down to costs and court time Toxic...they will hear both together...present your arguments and applications..object to their application for the above reasons.SJ hearings are separate from the main process of your trial process so they may be allowed to submit a restricted amount of evidence....but your application/judgment should still out weigh their case for SJ.

 

Regards

Andy

[toxicdebt]

Thanks Andy.

[toxicdebt]

Back from Court...

 

Upshot is that my application to strike out was dismissed. Reason given was that the although the claimant had missed every singal court deadline as per the court directions, the biggest offence was their failure to serve witness Statement, which has already been delt with via the sanction of them being debarred from giving oral evidence at trial. I told the judge i had just one day to compose my WS and serve it by the time the claimant had supplied their standard disclosure list & sent the documents I had requested. She then asked if I had not been able to include anything in my WS due to this. I said there were two parts that i had included but were not in my Standard Disclosure list. This was obviously not enough for her to agree with the strike out. Total hearing length 30 minutes. Waiting time 2 hours!

 

Their application for Summary Judgment was adjourned as the Judge said there was not time to hear it today and that the defendant must be allowed time to compile and serve any written evidence I wished to submit. - new SJ hearing 6th August. I have until the 19th July to serve any written evidence.

 

The chap representing Shhosmiths (he wasn't from Shoesmiths) was quite pleasant. He told me that Arrow Global had made a complete balls up of this case and in panic pleaded with Shoesmiths to take the case back on at the last minute. He also told the judge this in a round about more legal way.

 

The other interesting thing hew said to the Judge was that with "being debarred from giving oral evidence makes it very difficult for the claimant to achieve a result at trial" (or words to that effect).

 

I also over heard the Shoesmiths chap talking about my case to another solicitor in the waiting room. This solicitor said during the conversation "You expect to get a Summary Judgement after waiting all this time ( 4 months) from the defendant serving his Witness Statement? Why have you not sent the SJ application sooner". The Shooy guy related the 'Arrow Global balls up' line to him!

 

It was a deputy District judge I had, who was new to the job (according to the Usher) and seemed more nervous than me! She was pleasant if not a little patronising when speaking to me compared to when she spoke to the Claimant chap.

 

So I live to fight another day. I need to prepare some written evidence in support of my defence of their SJ now. After today's hearing I am a little less confident than before. But I march on!

Edited July 12, 2013 by toxicdebt

[citizenB]

I would have thought you would be a little MORE confident toxic Do you know if the Judge has reserved the case for her to hear or will it go back into the Judge lottery box again ?

 

So you have until next week to prepare. I am sure andy will pop in soon.

[toxicdebt]

Hi citizenB, thanks for your reply.

 

She didnt reserve the case so it will go into the lottery & ill get a different judge. It nearly went to a different court, until the chap said he didnt know where that was! They called an employee in with a diary to book it in.

 

The judge did say something about "reserving the costs" from my strike out hearing, and then explained the costs awarded against me for today's hearing would be rolled over to the future hearing.

 

I think the lack of confidence is down to the judge's patronisation toward me and longing looks of understanding toward the Shoesmith guy. However, now I know what to expect I wont let it deter me next time. Im treating this hearing as a rehearsal for the next.

 

There is one point Id like some advice from Andy on over something they produced called a "Skeleton Argument on Behalf of the Claimant". In it one point regarding the DN asking for the full amount owed rather than the arrears. Basically he said it didn't matter that it asked for the whole sum & spouted some legal jargon. Worryingly the Judge nodded in agreement with him. Ive got a copy from him in the car. Ill scan the whole document up as soon as Ive had a cuppa.

 

I also suspect that they will now find this thread, as he asked if I had a legal background and praised me on my Witness Statement preparation. I told him Id researched on the internet. In hindsight perhaps a bit silly of me to tell him that.

[AndyOrch]

From all accounts Toxic I would say you came out on top...if you could get that scan in as soon as convenient.....then we can discuss a Skelly Argument.

 

Regards

 

Andy

[toxicdebt]

Hi Andy, Wow! Thanks for the Boost in confidence (and you citizenB). I really thought i could have performed better. I've been beating myself up!

 

Here are the 6 pages of the Skeleton Argument... (5 pages this post, 6th in a new post below)

Edited July 12, 2013 by toxicdebt

[toxicdebt]

...and the final page:

[citizenB]

Have downloaded these and will read later on.

[toxicdebt]

Thanks.

 

My confidence has returned by the way

 

EDIT: I have the DN envelope in my possession. Its a UK mail one with just a barcode and a few numbers on it. It doesn't state whether its 1st or 2nd class. I can scan it up if needed. However I received it on the 11th not the 9th as they are assuming.

[citizenB]

Thanks.

 

My confidence has returned by the way

 

[toxicdebt]

Did you manage to give the Skeleton Argument a look over citizenB?

[citizenB]

I am so sorry, I got sidetracked.. I am reading it right this minute.. BRB

[citizenB]

Page 1 - Default Notice Time:

 

Point 7 : - this is misleading, that should read Service is deemed delivered 2 business days after being sent.

 

- you have the 2nd class envelope this came in don't you ? Therefore you can knock that one down because 2nd class/UK mail is deemed delivered 4 business days after being sent.

[Old Cogger]

Page 1 - Default Notice Time:

 

Point 7 : - this is misleading, that should read Service is deemed delivered 2 business days after being sent.

 

- you have the 2nd class envelope this came in don't you ? Therefore you can knock that one down because 2nd class/UK mail is deemed delivered 4 business days after being sent.

 

 

Read this: a take note of contents regarding days/working days? hope it helps?

PRACTICE DIRECTION MASTER OF THE ROLLS BICKFORD-SMITH POSTING TIMES.doc

[citizenB]

9 & 10 Default Remedy.

 

Again I think this is misleading whilst SI 1983/1561 does not mention "arrears" - it does state what is required to remedy the breach. If the full balance is not due then they cannot demand accelerated payments (payments that are not yet due) unless they issue a notice in another format. I cant recall what that is. Will give DonkeyB a shout to see if he can help with that one.

 

I don't quite understand what they are trying to say in point 11, perhaps DonkeyB can throw some light on that one as well.

[citizenB]

Assignment - Page 4.

 

They might have messed up here.

 

They say in point 17 - "At the end of the transaction log (exhibits) we see the account has been sold as of 17th January 2012." Then goes on to say that "Ms Meredith states at para 21 of her statement that the notice was sent on the 15th January 2012 "

 

2 days before the account was sold they advised you that it HAD been assigned !!

[citizenB]

Thanks Mike - That will do nicely

[toxicdebt]

Thanks Mike. Ive printed that out in triplicate

 

I still have the UK Mail envelope, but how do I prove it was second class? It doesnt have anything on it to say.

 

Ha! citizenB - You are right, Ive just checked the Notice of Assignment and its dated the 15th January. I also checked their SJ Witness Statement and point 21 does indeed state 17th January for the date sold. The last entry on the list of transactions also states that it was sold 17th January.

 

So does this mean that once Ive pointed this out they can no longer rely / present it at the SJ hearing?

 

Hmmm. Should I put this in my SJ Witness Statement or save it for the hearing?

[citizenB]

Well it looks rather odd doesn't it? How could they have let you know that the account had been sold.. before it had been ?

 

It is something I would be questioning. I would raise this in your SJ statement.

 

When have you got to submit the statement ?

 

I sent an S.O.S. to andyorch for you earlier .

 

The envelope.. can you describe it ?

 

or scan it and post a copy up? If you would rather not post it on the forum, I can pm you an email addy.. just so I can have a peek.

[citizenB]

toxic, what was the clause they say you breached in the Default Notice ?