Help Please: County Court Claim Issued after won Set Aside

[beanpole]

Hello,

I have been issued with County Court Claim for alleged debts owed to Phoenix Recoveries, whose DCA, is acting for them.

DCA issued a letter demanding immediate full payment (of a sum I didn't recognise) or they would issue CC action.

Despite writing back to say I did not know what they were referring to, in the meantime, they went ahead anyway and started proceedings (!).

I now have a reply from DCA telling me I should know that the debt refers to accounts that were apparantly assigned from original creditor. It seems they have been added together and had interest added, together with court costs.

These are the same accounts that last year, they issued Statutory Demands for and when I applied to Court for Set Asides, I was successful.

 

I know the basic process, but of course any advice would be welcome, as it seems I will have to go through this all over again, demanding all documentation and putting them to strict proof.

 

In particular, I'd like to hear of any similar cases, having had the Stat' Demand set aside, only then to go for a CCJ....

 

Many thanks

Beanpole

Edited February 8, 2009 by beanpole
Removing names

[42man]

OK BP.....we can certainly fight this. First thing can you please post up the POC's (Particulars Of Claim) i'd suggest using CPR 31.14 in the first instance or possibly CPR18 depending on what the POC's say. (this is important - but don't be specific with the numbers when replying)

 

Have a read of this too

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Send me a PM, when you have written up the POC's..

[beanpole]

OK thanks 42man, yes already planned to use the CPR reference, so that I can submit 'embarrassed' defence in time.

I will get POC up next; they are limited to amount with dates and account numbers only. They refer to one supposed notice of default and also have added Particulars of interest - charges accruing, but that's about it, no specific list of documents provided, to which I will refer to in correspondence.

Only in recent letter have they referred to the previous 'action' attempted, without producing any documents so far.

More to post shortly.

BP

[beanpole]

OK, next I'll be preparing my full defence on this, so any starters for 10 would be welcomed.

 

Also, is there any clarity around the legal postion of applying for CCJ on same alleged debt that was set-aside when Stat' demand route failed ?

If the documentation from before is simply repeated, how much can this 'failed' action be relied on ?

 

any comments ?

thanks

BP

[42man]

OK BP.....I presume you will use the CPR 31.14 ?

 

Edit the below....(send recorded to opp sols)

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

 

Keep a close eye on the timescales too BP.....don't miss the deadlines....

[42man]

Couple of useful threads here for you BP, when it comes to a defence....the short one is used when they don't respond.....but bear in mind have you still got the judgment from the stat demand set aside ? I presume they didn't come up with any documents then did they ?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161469-1st-credit-animal-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167353-help-court-claim-howard-2.html

[beanpole]

Thanks for that - yes all duly noted and done.

Yes I have the Set Aside confirmaton from court etc, which I will quote.

Thanks for the references.

 

I am writing my defence....but it appears they are referring to the argument used last time around....nothing beyond that sent yet.

 

hmm.......

BP

Anyone else with any similar experience of CC post Set Aside - all posts welcomed.

[beanpole]

Still no reply to my letter.

My Defence will be submitted and then I guess it will go to AQ's ?

 

Is there any case law anyone knows of where a 'Set Aside' has been quoted as successful defence in CC ?

Without naything further submitted, isn't the same argument ?

 

Any urgent help on this please ??

 

Thanks

BP :idea:

[42man]

Mention the stat demand set aside....and the embarrassed defence OR have a look at these

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161469-1st-credit-animal-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167353-help-court-claim-howard-2.html

[beanpole]

OK thanks

yes I have done so and referred to relevant CPR PD's too

 

BP

any other comments welcomed !

[beanpole]

OK, having submitted to court, my defence has been copied out, with AQ form attached - to be completed, which I will get back to court - seems straightforward enough as I am defending in full, but any advice on this stage welcomed.

 

I know that 'track' and timings will be determined after the AQ's submitted, but I will make the point that there are 2 separate claims here, although all lobbed into one.

 

Nothing back from other side, passed CPR deadline, so any other action I should take now ?

 

Please let me have any advice.

 

Thanks

BP

[beanpole]

Urgent advice please with reference to AQ's.

1. Section A: I've said no to Settlement as I'm defending the whole claim, using lack of any response to my CPR31.14 request and failure to follow pre-action protocol, as my reasons. Anything else required here ?

2.Section D. I haven't made an official application to strike out, although within my defence I have suggested that it should be.....should I say that I intend to apply and if so, when is it right to do so ? Also, on allocating, when does multi-track get used ? if above £5k, it says should be fast-track.....

3. Section G is about costs....as I'm litigant in person, it says I should not fill in....when and where do I say that I will be asking for costs to be taken into consideration...as my defence was submitted without any response from claimant, I haven't yet identified what my costs might be.

4. Section H, it looks like Claimant pays for AQ, so i assume I say no.

5 Section I, this looks like I use this to say that there are 2 separate claims, even though they have submitted to Court as one action with 2 amounts added together. Also, this is where I should state that my CPR 31.14 request has been completely ignored ?

 

Please let me have any responses as soon as possible to ensure I understand this step properly.

many thanks.

BP

[42man]

Which AQ is it BP ?

[42man]

Links here to AQ's for you...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/121975-link-financial-county-court-2.html#post1385509

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161188-allocation-questionnaire-urgent-help.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/159341-court-papers-received-what-6.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/175566-upto-eyeballs-cl-finance-2.html#post1916595

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170982-dreaded-court-claim-came-4.html#post1966689

[beanpole]

sorry - it is N150 form, thanks for reply and links !

makes better sense now.

Edited March 24, 2009 by beanpole
incomplete

[beanpole]

Hello everyone.

So after some time (court getting busy), the other side, having missed their original deadline for AQ submission, eventually did file. There has still been no reply to my demand for doc's. Instead, their suggested Directions sugest stay for negotiation.

Eventually Court has considered and simply scheduled in an allocation hearing.

As my AQ had suggested Directions that Court should enforce CPR31.14 and if not strike out, what is likely to be the process at the forthcoming hearing ?

Any views on what the court is looking for ?

thanks

BP :idea:

[miss muppet]

Hi Beanpole, so sorry you're having to deal with this again. If I remember rightly, they didn't come up with any form of agreement so armed with everything you have, you shouldn't have too many problems. I had an application for a summary judgement dismissed in May due to the fact MBNA supplied 6 pages of terms and conditions unsigned and called it the credit agreement and a blank application form and called that a credit agreement. Be ready for any questions regarding default notices as well, have you got one from the original and does it comply. I'm trying to apply my mind to my second hearing of the above and finding it difficult, think its also as well to have the relevant SI's of the Consumer Credit Act 1974 available as well. Have a look at Staying Calm's thread on legal successes for all the relevant case law.

[beanpole]

Hi again and thanks MM.

Got all that advice and noted.

We'll see what Directions are issued at the hearing.

Does anyone have a view on what the Judge is likely to be looking for ?

I will still be asking for delivery of doc's which have not been issued and if not, dismiss.

Anyone got experience of this stage, with outcome ?

cheers

BP