Is defendant liable for costs if DN does not comply?

[underdog13]

From reading various threads, it would seem that judges are begining to wake up to the DN issue:)

[foolishgirl]

Therefore our client have informed us they intend to pursue this matter through the courts (albeit without an agreement).

 

No agreement, no enforceable debt, the DN issue is just another nail in their coffin. Suggest you bring both facts to the F&F settlement table.

[Moral Dilemma]

Ok, this one is back. Claim is stayed until 17 April 09, have received letter from Claimant's Sols inviting me to withdraw my defence.

 

They claim the agreement is enforceable (a copy of which they haven't supplied YET).

 

And the copy of the DN served under S87(1) is complaint with relevant regulations. Therefore their client has complied with the act and served a complaint notice. (This is the notice that is different from the one received

 

They then go on to add …we therefore invite you to withdraw your Defence…you have failed to disclose any reasonable grounds for defending…if you fail to withdraw your defence our client has instructed us to make a Summary Judgment Application…client will be seeking their reasonable costs to be assessed by the Court…

 

If they do make an application for Summary Judgment what is best way for me to deal with it?

[Docman]

I suggest you could write back and tell them you will oppose any application for summary judgment and seek costs against their clent on the basis that they have no CCA nor a Default Notice. Then let them make the next move - or make your own application for their case to be struck out.

[bazaar]

This is just a threat by them because they know they havent got the correct paperwork.

Either wait til they apply for judgement then defend, or write to them demanding the CCA and proof of service of DN etc, under the CPR rules. Copy to court of course.

[Moral Dilemma]

This one comes round again.

 

Have this weekend received bundle of documents from court along with notice of hearing for claimants application for my defence to be struck out for disclosing no reasonable grounds for defending the claim, and/or that there be Summary Judgment for the Claimant pursuant to Rule 24.2 of the Civil Procedure Rules, because the defendant has no real prospect of successfully defending the claim and there is no compelling reason why the case should be disposed of at trial.

 

My full defence against this claim was submitted over nine months ago.

 

Given that Claimant have still not supplied a copy of the original signed agreement can claimant now after nine months apply to have my defence struck.

 

Would they be required to make an application for a defence to be struck out within a certain time limit of a defence being received by the court?

[supasnooper]

Please can you post up the text of the Court Order so the right advice may be offered ?

[Moral Dilemma]

3. What order are you asking the court to make and why?

 

I wish to apply for an Order pursuant to Rule 3.4 of the Civil Procedure Rules that the defence be struck out for disclosing no reasonable grounds for defending the claim, and/or that there be Summary Judgment for the Claimant pursuant to Rule 24.2 of the Civil Procedure Rules, because the defendant has no real prospect of successfully defending the claim and there is no compelling reason why the case should be disposed of at trial.

 

I would draw the Respondent's attention to Part 24.5.1 of the Civil Procedure Rules, in that should they wish to rely on written evidence at the hearing, they must a) file written evidence, and b) serve copies on every other party to the application al least seven days prior to the hearing.

[tinkerbell20]

They won't get summary judgment & they know it shame its not solicitors costs they'll be paying

[kel123]

MD I am in a similar position as you regarding Lloyds/SC&M, we have received the same letters.

 

My, sorry their Stay is up 30 june 09 and I did try and object to this further stay but the court started to get uperty so I stopped, they have not tried to throw out my defence yet but I have trid to throw out theirs (LOL).

 

Letter today sent without prejadice asking them to confirm that they still intend to proceed knowing that they are facing a:

 

DN that does not conform to legislation (I TOO have the original)

 

continuing to collect knowing that the acc is in dispute (I have letters from Lloyds asking for more time to investigate)

 

Unreadable CCA with no Lloyds signature

 

CCA request and SAR supplied outside time frame

 

Knowing that it took them 2 months to partially comply with an CPR 18 request

 

They have already had to pay to have the case reinstated because they were outside their time scale to reply to my defence!

 

Surely if you have 2 different DN's then one is a forgery and therefore goes against the sol's charter and is criminal intent to gain money for another person (institute) through diseption?

[Moral Dilemma]

What I don't understand is (in my case anyway) they have not yet produce a signed Credit Agreement, yet have applied for my defence to be struck out and/or Summary Judgment, surely without such an agreement and defective DN a judge would dismiss their application.

 

Would they relay on copies of statements to prove the debt.

 

Has anyone been in a similar situation where claimant have produce copy statements?

 

Is their any legal argument against producing copy statements to prove a debt?

[kel123]

It may be benefical to get your head around this unenforeable bit.

 

Without the contract there has been no agreement, yes you have had the money but it is unenforceable in a court of law - leaving the bank with nowhere to go, they can still chase you by what ever means they wish except through the courts but what ever they try they have no legal standing.

 

I am a technician/engineer and 2+2=4 and I have problems getting to grips with this industry and the judicary. I have found it easier to accept somethings as 'this is the way it is done'. In my case they failed to reply to my defence in the allotted time (35 days in total because the last day was a sunday and there was an r in the month This last bit is me being sarky) my brain said thats it! the end of it! they have lost their chance but no! 3 days later sc&m paid to have it reinstated, so why have time scales?

 

Remember me, thee and other have the gaul to ask why, if and when; other out there get scared and accept that if a sol says so they are correct I must pay them. After 4 years of in debt and unable to pay my wife still panics when a threatagram hits the mat!!!

[B3rty]

This is just a game they are doing what they need to do to give the judge enough information to get the judgement in their favour

 

Now you need to do the same and the lack of an agreement is probably the easiest thing to be able to argue using CPR7.3 which requires a copy of the original agreement to be produced in court...they have not complied with your CPR request for documentation so if you get your ducks in a row this is quite easy.

 

However just because something isn't enforceable by the court doesn't mean they wont enforce it...that's not how the system works and you now need to get your facts clear in your mind so you can present your legal argument otherwise you will lose..

[Moral Dilemma]

B3rty,

 

Working on written evidence to submit prior to hearing.

 

One thing when you say "just because something isn't enforceable by the court doesn't mean they won't enforce it…"

 

Does the "they" mean court will still enforce it?

[kel123]

From my understanding county court judges who are not ofay with current legislation will work on probability, so it is your job to be armed with the facts - current legislation to back it up and presidances to back up the current legislation.

 

There as been many instances on here of the judge going against the CCAct, an appeal seems usually to put this right.

[underdog13]

What I don't understand is (in my case anyway) they have not yet produce a signed Credit Agreement, yet have applied for my defence to be struck out and/or Summary Judgment, surely without such an agreement and defective DN a judge would dismiss their application.

 

Would they relay on copies of statements to prove the debt.

 

Has anyone been in a similar situation where claimant have produce copy statements?

 

Is their any legal argument against producing copy statements to prove a debt?

Well I suppose you could always scan a statement into your computer, phototshop it to show the solicitor's name or donald duck or something, to prove how easy it is to alter documents and argue why they should not be relied upon?

[Moral Dilemma]

Just in process of putting together evidence I will relay on at hearing to consider claimant's application for defence to be struck out and summary judgment and wondered if anyone had any thoughts on the following:

 

S127 Enforcement orders in cases of infringement

 

(1) In the case of an application for an enforcement order under–

(a) section 65(1)(improperly executed agreements),

 

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if it considers it just to do so having regard to-

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it;

 

subscection 4 states

 

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if-

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which this order is sought,

 

Has anyone had much success arguing this point, in particular when claimant have failed to supply a copy of the agreement following S78 request, prior to issuing formal demand, prior to issuing county court claim and following a request under CPR request.

[B3rty]

Are you past the AQ stage because it's here that you should ask for those directions ?

[Moral Dilemma]

AQ submitted in September 08, along with draft order for directions for claimant to supply copy of executed agreement, file sat on DJ's desk for 4 months, Claimant asked for a stay, then another stay to attempt settlement. No settlement reached.

 

New date given for submitting AQ (I resubmitted along with same draft order).

 

Claimant made application for defence to be struck out and summary judgment 1 week before date AQ's to be submitted, so was told by Court Manager, Court would deal with this first.

 

Court received claimants AQ, but claimant did not forward copy to me.

 

However claimant have requested claim be allocated to Fast Track (even though under 5K) due to complex nature of claim. "We can't find the agreement!!!!!" - Thats my impression of them.

Edited July 8, 2009 by Moral Dilemma

[Moral Dilemma]

Further matter I have been giving some thought to is have seen a number of threads were Claimant have stated that the card carrier sent with credit card on is a copy of the executed agreement. Haven't been able to find the one relevant to this account.

 

Has anyone been in court were this point is made by claimant, was this accepted by the DJ, the card carriers I have seen do have an agreement printed on them, but no signature boxes.

[Moral Dilemma]

Bump

[Moral Dilemma]

Due to attend hearing on Monday, rang court to check time etc and it appears claimant have withdrew their application for defence to be struck out and summary judgment in their favour and vacated the hearing.

 

File will now go to judge for allocation and directions, however person I spoke to did say court has a backlog of claims and could be a least six weeks before hearing anything. Another wait on the cards then.

 

Hopefully one of the directions will be to produce a copy of the alleged agreement which I still have not seen.

[surfaceagentx20]

Moral D,

 

I know of no rule of law either under CPR Part 23 or Part 24 or elsewhere permitting a party to unilaterally withdraw it’s own application once it has been served. If this were so it would lead to injustice. A party to an application can be expected to have incurred time and expense in preparation for the application hearing and the opportunity to ask for those costs is lost if the hearing is vacated simply on the say so of the applicant. The consent of all of the parties to the application is required. Besides, you do not appear to have written confirmation of the withdrawal and if the application were to proceed in your absence owing to some error on the part of the clerk inadvertently referring to your case when he or she meant to refer to some other you might be in difficulty.

x20

[AndyOrch]

Hi MD

 

Fully agree with x20 statement and in addition the Court also needs your approval the Claimant can not vacate without your consent also.This would be followed by a letter from the court confirming the hearing vacated.

 

Regards

 

Andy

[The GodMother]

MD

 

It might be a good idea to still go to the courts on Monday with all ur paper work etc and see what the courts say and advise on the day.

 

You could even write up and print of a document asking for the court usher to sign to say that the hearing was vacated and that you did attend the hearing.