Marlin/Mortimer CCJ HFC Marbles Card - Set Aside Help **WON plus Costs**

[r&b]

keep goin spam. as FG says dont let a few jobsworths who dont know their posterior from the bent bit in their arm get u down. ur in the driving seat here;)

[Spamalot]

Hi R&B and thanks..

 

Just makes you wonder sometimes about what you're up against!

 

My only hope is that the judge has got a copy of CPR nestling amongst his Hob Nobs when he gets around to reading my application as he won't find one in the court office..

 

Think if I eventually get awarded the costs for this case I'll buy a copy and give it to the Court Manager as a thank you pressie

 

 

Two steps forward and three steps back...

[Maggie_moo]

Gosh Spammie, been having a little read of your thread, hope you don't mind me being nosey

 

I can't pretend I understand all of it , but my goodness how frustrating!

 

Just wishing you best of luck, I know you'll get there in the end. Chin up x

[Spamalot]

Aw thanks maggie... your support is most welcome..

 

It started off with a simple question and ended up with War and Peace..

 

Spam.

[Spamalot]

Silly question time

 

Can anyone tell me the next step in this merry dance please?

 

I assumed that it would be a simple case of MC being informed that I've applied to have Discontinuation set aside and therefore their claim would be going to trial and I would just be sent a new date to submit my defence and receive my AQ... but after yesterdays fiasco I'm not so sure..

 

Can anyone advise please?

 

Thanks, Spam.

[Spamalot]

** UPDATE**

 

I have received a letter today from MC containing the following....

 

 

 

We write with reference to your letter dated 13th September 2009.

 

The Civil Procedure Rule 38.5 (1) states ...." discontinuance against any defendant takes effect on the date when notified of discontinuence is served on him under rule 38.3 (1)". Therefore we confirm your consent is not required for our client to discontinue their claim and the claim stands discontinued.

 

Furthermore our client is fully entitled to serve a valid default notice upon you and apply to the court to re-issue a claim for monies due under said Marble Visa agreement dated 15th November 1999, should the default notice fail to be complied with.

 

Our client has instructed us to take the appropriate action to remove the default notice against your credit file in respect of the above matter, however should a valid default notice be served in future and should this not be remedied within the specified time period, this will be re-applied to your credit file.

 

This appears to be their response to this.

 

 

Claim No. xxxx

County Court xxxxx

MC v Spam

 

Without Prejudice

 

Dear Sirs

 

I am in receipt of the Notice of Discontinuance you have filed with xxxx County Court in respect of the above case dated xxx & served on me on xxxx.

 

I am prepared to consent to this discontinuance provided I receive your written agreement to the following:

 

1. You consent not to issue any further legal proceedings in connection with this account at any time in the future.

 

2. You consent not to sell, assign or otherwise dispose of this account for collection purposes to the original creditor, any previous assignor or any debt collection agency or similar organisation at any time in the future.

 

3. You consent to remove all default markers with the credit reference agencies in respect of this account. This must be effected within 14 days of any agreement made between us.

 

4. You will forward to me the sum of £ xxxx representing the costs I have incurred as a result of defending your unfounded legal action plus an additional sum of £xxx in compensation for the distress & material hardship I have suffered as a result of the application of adverse credit markers to my records. These funds must be received within 14 days of any agreement made between us.

 

Unless I receive your written consent to the above by xxxx , I will apply forthwith for a set aside of this discontinuance.

 

I look forward to hearing from you at your earliest convenience.

 

As the letter wasn't headed without prejudice, would I be able to use it in court as proof that they were going to come back at me on a later date and therefore my set aside of discontinuance is justified?

 

Comments invited.. Do you fink that they fink I'm fick?

 

Spam.

[AndyOrch]

Hi Spam

The discontinuance takes effect on the date when the notice of discontinuance is served on the defendant (CPR 38.5). Unless the court otherwise orders the person who discontinues is liable for the costs (38.6)..

 

however should a valid default notice be served in future and should this not be remedied within the specified time period, this will be re-applied to your credit file.The account as been terminated hence legal proceedings therefore no further DNs can be issued

 

 

 

Andy

[citizenB]

With reference to the letter sent you by the solicitors regarding a re-issue of a Default Notice

 

You might want to have a read of the following.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html

 

HTH

 

Andy has already commented in respect of the account having been terminated so they cant issue a further default notice.

[Spamalot]

Hi Andy, Citi B,

 

Thanks for your comments.

 

 

Should I respond to this tripe with the fact that I have applied for the discontinance to be set aside and then give them the lesson in default notices and termination or should I just let it come as a surprise.?..

 

Spam.

[AndyOrch]

Hi Andy, Citi B,

 

Thanks for your comments.

 

 

Should I respond to this tripe with the fact that I have applied for the discontinance to be set aside and then give them the lesson in default notices and termination or should I just let it come as a surprise.?..

 

Spam.

 

I wouldnt waste my energy Spam,dont upset them further afterall they are still licking their wounds.

With regards to your set a side what did you include in support of the application(sorry if you have already posted it) was it my letter for judgement and costs to be awarded?

 

Regards

 

Andy

[Spamalot]

... I didn't include anything!! other than I was applying under CPR 38.4 and I wanted the opportunity to defend the claim. I also attached copies of the Judges Order re defence and AQ and the notice of Discontinuance!!

 

Should I have put more in it then??

 

I thought that asking for the agreement to be judged unenforceable was a counterclaim...

 

Yikes... if I need to do more, tell me quick and I'll ring the court..

 

Spam:(

[AndyOrch]

I wasnt sure if you was going the route of (post 328 page 17) in respect of the NoD and requesting Judgement in your favour and costs.

Dont worry Spam lets see what the Court responds with to your application

 

Regards

 

Andy

[Spamalot]

Hi Andy and thanks for the fast response.

 

I may have misunderstood that post as I took it to say that it was normally a response to a strike out, and it hadn't been tried and tested on a discontinuance.I just thought the safest option would be a set aside.

 

If you think I should add anything to my application I can give the court a ring and see if it's gone in front of the judge yet, and if not ask them to hang on as I have further info..

 

Spam.

 

There's no point asking the court for guidance as they haven't a clue anyway...

Edited September 25, 2009 by Spamalot

[AndyOrch]

Lets wait for now Spam, you always have that up your sleeve for later.

 

Andy

[foolishgirl]

 

Furthermore our client is fully entitled to serve a valid default notice upon you and apply to the court to re-issue a claim for monies due under said Marble Visa agreement dated 15th November 1999, should the default notice fail to be complied with.

 

Our client has instructed us to take the appropriate action to remove the default notice against your credit file in respect of the above matter, however should a valid default notice be served in future and should this not be remedied within the specified time period, this will be re-applied to your credit file.

 

 

Hmm... just as we suspected isn't it? Did they think they could just start over at a later date??

 

I wasnt sure if you was going the route of (post 328 page 17) in respect of the NoD and requesting Judgement in your favour and costs.

Dont worry Spam lets see what the Court responds with to your application

 

Regards

 

Andy

 

Costs yes, but not sure she would be able to get a judgment against the claimant without an application for set aside of the discontinuance, andy. If it's possible, can you explain the process of how to achieve that please?

Remember, she didn't get the chance to put in a defence so in effect, the claim is at the moment as if it never was.

Lets wait for now Spam, you always have that up your sleeve for later.

 

Andy

 

Agree with andy, let's see what the DJ says. You shouldn't have too long to wait spam.

Edited September 25, 2009 by foolishgirl
additional info.

[Spamalot]

Hi FG,

 

Thanks for your comments.

 

MC's reply does beggar belief, particularly the default bit... I reckon they were going to try and squeeze another one through Northampton when I wasn't looking... i.e. wrong address... because they're losing a lot of money for their 'client' and they are now grasping at straws...

 

If they add my costs to what they've lost already it should add up to a pretty penny.. No wonder they didn't even mention them.. Perhaps they thought I'd forget

 

Spam.

[foolishgirl]

Well as you didn't send the letter 'without prejudice' I think this will add nicely to your defence file (MC dismiss settlement & are determined to waste court time) & totally justifies your reasons for submitting the set aside i.e. these b's thought they could discontinue this case m'lud & then carry on their bullying illegal tactics regardless! Makes you wonder whether you should have asked for the hearing for the set aside.

 

Bring back the law of double jepoardy!!

Edited September 25, 2009 by foolishgirl
addition

[Spamalot]

FG,

 

I did send the letter ' without prejudice' but their reply was not.. I assume that even though it is my letter I can't use it in my defence? Maybe I could just state that I attempted to settle the situation and show the court their reply...

 

Spam.

[foolishgirl]

Yes, correct. Sorry spam, dislekic again.

[Jeff2000]

FG,

 

I did send the letter ' without prejudice' but their reply was not.. I assume that even though it is my letter I can't use it in my defence? Maybe I could just state that I attempted to settle the situation and show the court their reply...

 

Spam.

 

 

 

 

Or send them another letter offering one final chance of settling the matter!!

[Spamalot]

Or send them another letter offering one final chance of settling the matter!!

 

If I didn't think it was too late I would...

 

Maybe I'll just reprint my letter to them with the 'Without prejudice' removed...

 

[Jeff2000]

If I didn't think it was too late I would...

 

Maybe I'll just reprint my letter to them with the 'Without prejudice' removed...

 

 

 

 

Yep, that's sort of what I meant.

[AA99]

Subbing now spamalot! Well done you for sticking it out with this lot!

[Spamalot]

Hi everyone and thank you and welcome AA99.

 

After much thought....

 

I am considering sending this letter to MC as a response to the tripe they sent me and also so I have a letter I can use in court which refers to my 'without prejudice' one.

 

Dear Sir/ Madam,

 

I refer to my letter of the 13th September 2009 and your subsequent response dated 24th September 2009.

 

My letter requested the Costs I have incurred as a result of defending your legal action and the Compensation for the distress and material hardship I have suffered as a result of adverse credit markers and a County Court Judgement on my credit record.

 

I also requested that you agree not to attempt to collect on this alleged account or sell the alleged debt to another agency.

I requested a reply by 21st September 2009 so that this matter could be settled out of court and so as not to incur more costs and waste more of the Courts time.

 

You chose to ignore my letter despite my emailing it to you again on 22nd September. I invited you to respond by email and gave until 23rd September to reply or I would have to pursue a legal course of redress.

 

.

I was somewhat bemused by your eventual response dated 24th September as it made no reference whatsoever to my request for costs and compensation and seemed to focus mainly on your clients right to bring further action against me It also implied that I was under the impression that you need my consent to discontinue the claim.

I assure you I am not under that impression. I am quite aware of the Civil Procedure Rules involved when filing a notice of discontinuance and would like to draw your attention to two more:

 

38.4 (1) “ where the claimant discontinues under rule 38.2 (1) the defendant may apply to have the Notice of Discontinuance set aside

 

38.6 (1).. “ Unless the court orders otherwise , a claimant who discontinues is liable for the costs which a defendant, against whom a claimant discontinues, incurred on or before the date on which notice of discontinuance was served on the defendant.

 

 

As I had not received a reply to my letter of 13th September 2009 by the 23rd of Septemeber as requested , I filed an application to set aside your Notice of Discontinuance.

 

You will be hearing from XXXXXXX County Court in due course.

 

Comments,editing and advice please...

 

Spam.

Edited September 26, 2009 by Spamalot

[foolishgirl]

Did you send them a copy of the applic. to set aside NOD?

 

If not & you feel the need to send the letter spam, suggest you include it & amend your last para to reflect the enclosure. i.e. this corresp. is being sent as info. for you & not a pleading to settle