Advice please - court papers received Barclays credit card/ ** CLAIM STRUCK OUT**

[Genelover]

I did however in my directions ask for proof of service and I have never received anything recorded delivery. Would this make a difference in court?

[creditcardmug]

Ok, first of all the judge didnt go with your draft directions, he did his own

here is CPR 16 7.3

Where a claim is based upon a written agreement:

(1) 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, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

So the question is has the claimant complied with the judges order, i.e. have they "filed" the fully particularised particulars of claim and have they complied with CPR PD 16 Paragraph 7.3

 

 

 

My advice is to contact the court tomorrow and find out...if they have then the court will need to send you copies of what they filed, in order that you can get on with your ammended defence

[Genelover]

Thanks CCM - I will do that. I've got a while to submit revised defence so not panicking too much:wink:!

 

Their covering letter did say that they have sent a copy of what they sent me to the court. So should they have sent anything else? In any case I will contact the court and ask for copies of what they have.

 

I have a feeling this is all going to boil down as to whether the judge accepts aan application form as a credit agreement.

[shinobi101]

Did they give a specific calender date to remedy by and was it at least 14 days from you receiving the notice?

 

Maybe being picky here, but could be worth it as you can get good results on default notices.

 

Do you have a record of the date you received the DN?

 

The DN has to specify a date not less than 14 days from the date of service of the notice.

 

Assuming the DN was posted 1st class the day it was printed, they have to allow 2 working days for delivery. A working day is defined as Monday to Friday, excluding bank holidays.

 

If it was posted Friday, then sat/sun don't count, then 2 days means the date of service would be the Tuesday. Then you count 14 calendar days from there.

 

Does that make any difference? Apologies if you know all this, I'm enthusiastic about DN's

[banker_rhymes_with]

Hello Folks!

 

Just to clarify further what shinobi101 has just said above, the thing to realise is the date that you receive a Default Notice is not the key.

 

The key is the legal Date of Service. That date, as outlined above, is based on the Date of Posting, and the Type of Posting they used, i.e. 1st Class or 2nd Class (slower Post will just be regarded as 2nd Class).

 

So, an important date is actually the Date of Posting. In the absence of any evidence to pin point that, then it will be assumed that the Date of Posting would have been the same day as the Default Notice date.

 

This is why keeping the envelopes is so important, because they will show you the type of posting used, but may also reveal something about the Date of Posting too.

 

For example, a Default Notice may be dated Friday 3rd July 2009. If the Court assumes 1st Class Post, then +2 Working Days from that gives you a Date of Service of Tuesday 7th July 2009.

 

But, the bank may not have posted the envelope 1st Class until the following Monday (6th July 2009). In that case, the +2 Working Days clearly start from the Monday, but unless you can prove that is when they posted it, the Court will simply decide that the Default Notice was posted on the Friday, to match the Default Notice date.

 

But, if the bank used a Franking Machine that added a date, and that left a mark on Monday with Monday's date (6th July 2009), then you have clear evidence that the envelope was still in their hot little hands on the Monday, irrespective that the Default Notice itself was dated the previous Friday (3rd July 2009).

 

In that case, you can start the delivery clock ticking from the Monday not the Friday, pushing the Date of Service based on 1st Class Post (+2 Working Days) to Wednesday 8th July 2009. That is an extra day just by being observant and keeping the envelope.

 

Let's imagine that the actual letter arrived much later on, say, Thursday 9th July 2009. That's worth keeping a note of, but in the absence of any other evidence, the legal Date of Service will still be Tuesday 7th July 2009 if the envelope was 1st Class and the Default Notice dated Friday 3rd July 2009.

 

Now, what if a close inspection of the envelope reveals two orange Royal Mail barcodes? I regret I cannot yet read these, but I can advise that they do contain both a date and a time. At some stage, I hope to be able to advise how these Barcodes can be read.

 

These orange Barcodes are UV reactive by the way...try shining a UV Light at them, and you will see how amazingly they stand out! They may look feint to the eye, but not to a UV Barcode Scanner!

 

However, assuming they can be read, then what if they reveal that the envelope was printed with Barcodes by Royal Mail on Wednesday 8th July 2009 at a specific time?

 

In my view, that would mean the envelope could not possibly have been served on that day, because it was still in Royal Mail's hot little hands on that day, not yours.

 

I think that would be sufficient evidence to show that the legal Date of Service came after that day. If Royal Mail confirm that they Barcode envelopes within, say, 4 hours of being Posted, and the Barcode shows a Date/Time around mid afternoon on Wednesday 8th July 2009, then I think it can be regarded as independant proof that the envelope was posted on the Wednesday.

 

The bank either back-dated the Default Notice, or they were very lazy and posted it when they got around to it. One banker creates the DN, another has the job of stuffing it into envelopes, and yet another has to see the envelopes collected and sent down for posting...that can take days in some organisations.

 

Arriving on the Thursday is therefore not unexpected for 1st Class Post, but the legal Date of Service is even later. That's if we can prove the envelope was not posted until Wednesday 8th July 2009. If we can, then if 1st Class Post, the Date of Service is +2 Working Days from then!

 

That makes a Date of Service of Friday 10th July 2009! That's a full week after the Default Notice if such evidence can be extracted from the envelope.

 

The 14 clear days in that case would start from Friday 10th July 2009...making a Statutory Deadline of Friday 24th July 2009. The Date of Service slides still further if they posted 2nd Class Post!

 

In summary, keeping the envelopes is vital, because it may well reveal a lot more than you thought...and a lot more than the banks thought too!

 

Cheers,

BRW

[debt4get]

subbing... this is getting interesting anyone know how its going now?

[Genelover]

Yes, this is getting interesting!! Have just phoned the corts and they say thay haven't recieved anything from the claimant! The lady apologised and said it should have been diaried...anyway, she said she will arrange for it to go back up to the judge. I asked if I could apply to have the claim struck out, and she said I could, but would have to put it in writing.

 

CCM, any help with the wording here?!

 

Regarding the DN - it is dated 4th July 08 (a Friday) and I was given until 21st July. So if we say allow two days from the Monday, that takes us until 22nd I believe!

[Genelover]

Anyone know how I should word my letter? Also, is there any chance of the paperwork turning up and the judge accepting it, even though teh deadline has passed?

[Guest Alison82]

Good luck, your doing well

[sunflower99]

Good luck too! Genelover! everything sounds hopefull that they are going to do a runner!

[Genelover]

Thanks everyone, I have written to the courts asking for their claim to be struck out so I will keep you posted!

[Genelover]

Update! recived an order from the court dated 23rd July ordering the case be struck out...but allowing a further seven days for claimant to respond first. Today receive a further 'general form of judgement or order' stating that the 'order of 23rd July is set aside own the court's own motion upon the amended particulars of claim having been filed by 16th July.' ??? Then it says the court is to serve amended particulars on defendant and I have until 28th August to serve defence. Is this normal? I rang the courts and asked for copies. Was told I should receive them in a couple of days, if not to ring back.

 

It seems all a bit haphazard to me, but can only assume they must have finally sent the papers they sent me. In any case, looks like my defence is going to be that all they have come up with is an application form with no prescribed terms. Can anyone advise my best next step please???!!!

[cerberusalert]

You can use the Embarrassed Defence

 

I'll try & find the correct linky

Edited August 13, 2009 by cerberusalert

[Genelover]

Thank you cerberusalert! I think I've also read elsewhere that some people have argued in their defence that they have already paid back more than they borrowed anyway. Is there any mileage in including something along these lines do you think?

[the_shadow]

Update! recived an order from the court dated 23rd July ordering the case be struck out...but allowing a further seven days for claimant to respond first. Today receive a further 'general form of judgement or order' stating that the 'order of 23rd July is set aside own the court's own motion upon the amended particulars of claim having been filed by 16th July.' ??? Then it says the court is to serve amended particulars on defendant and I have until 28th August to serve defence. Is this normal? I rang the courts and asked for copies. Was told I should receive them in a couple of days, if not to ring back.

 

It seems all a bit haphazard to me, but can only assume they must have finally sent the papers they sent me. In any case, looks like my defence is going to be that all they have come up with is an application form with no prescribed terms. Can anyone advise my best next step please???!!!

 

Have you received the amended POC yet?

 

S.

[Genelover]

CL sent me some in July, but havent received copies of what was sent to the courts yet. I'll chase them up today though.

[the_shadow]

CL sent me some in July, but havent received copies of what was sent to the courts yet. I'll chase them up today though.

 

Ok this is the bit

 

court is to serve amended particulars on defendant and I have until 28th August

 

Until the court serve new POC's on you cant know what to defend against.

 

S.

[Genelover]

Rang courts yesterday and they said I have been sent a copy of the amended POC. I have asked for copies anyway, just to make sure its the same but don't see why it shouldn't be. So I have until the 28th to submit a new defence.

 

HELP!!!

[Genelover]

Would it be worth starting a new thread in the legal issues forum? Or does anyone know if it can be moved? I've had so much help on this one, but maybe its all getting a bit too messy now?!

[Emma Royd]

Just wanted to wish you good luck x

[Genelover]

Thank you! I'm not giving up!

[colin21958]

I have posted a few questions on a credit card issue in the hope that someone may be able to offer advice, but it seems that no one has seen the post yet. So I thought I would post a link to it here in the hope that someone will see it and may be able to help. Thanks and sorry for posting here. http://www.consumeractiongroup.co.uk/forum/general-debt-issues/215080-respones-cca-letters.html#post2366444

[the_shadow]

Would it be worth starting a new thread in the legal issues forum? Or does anyone know if it can be moved? I've had so much help on this one, but maybe its all getting a bit too messy now?!

 

Genelover if you want the thread moved (it wont affect the people already subscribed) then click on the red warning triangle on the left hand side and request it from the site team...

 

As to your amended defence, you need to post up the new amended POCS if you are to have responses to the issues they now raise.

 

Your defence at the moment sounds like an illegible application with what appears to be no prescibed terms.. a default notice that isnt served by the creditor but rather the debt collection agency[should be fatal to their case].

 

Have you had a letter of termination btw?

 

S.

[Genelover]

Thanks Shadow...yes, that is the basis of my defence. The default notice was from Mercers, never had one from barclays, didn't realise this made a difference? Also have just been through my rather large file and can't see a letter of termination. I did make an offer of payment which was refused. Laughable really because if I lose this case the judge will look at my income and see I have nothing to spare each month!

 

Right, scanners broken, so here is the amended POC:

 

I, **** am authorised by the claimant to make this statement on his behalf.

 

The claimant's claim is for the sum of *** being monies due from the Defendant to the Claimant under a regulated credit agreement between the defendant and Barclays Bank PLC. There is now exhibited a copy of the credit agreement marked 'AR1.'

 

From time to time, the defendant made use of the credit facilities available to him. There are now exhibited copy staements of the account marked 'AR2'.

 

On 20th January 2009 Barclaycard assigned the account absolutely to CL Finance Ltd. There is now exhibited the said deed of assignment marked 'AR3'. On 11 february 2009 a Notice of Assignment was served upon the defendant pursuant to The law of Property Act 1925. There is now exhibited said Notice of Assignment marked 'AR4'.

 

The defendant has failed to make payment in accordance with the terms of the agreement and on 4 July 2008 a default notice has been served upon the defendant pursuant to Section 87(1) of the Consumer Credit Act 1974. There is now exhibited the said default notice marked 'AR5.'

 

The claimant claims the sum of ***********!

 

 

 

For the record, the copy statements supplied only date back to June 2004, although I applied for it in 1996. Is this relevant? If I argue that with the lack of a signed credit agreement, I have paid back more than what I borrowed (which I have!) surely this gives me a good case?

[saintly_1]

Thread moved to legal issues forum