MKDP & Barclaycard Claim Form***Strike Out***

[slick132]

Did the court specify that the defence has to be in by the 10th ?

 

[Shanidev]

Here is the rundown: Direction hearing in Oct 2012 ==> Order from court dated 11the Nov asked Claimant to provide all the docs (I listed them in #48) by 18th Nov and my defence by 2nd Dec and final submission from both parties and to each other by 10th Jan 2014.

 

Nothing came from the Claimant... I submitted my defence saying that nothing had come through and asked the court to send reminder. Then I received the docs on 21st Dec.

 

So, under the circumstances I can only sent my second defence statement. As the court never answer their phone, now that their admin has been centralised, all I can do is follow the order as best as I can. Please advise as to what I should do... wording etc... or should I respond differently.

[slick132]

Hi Shani,

 

I suspect you should have applied for a Strike Out of the claim after they failed to produce doc'ts as ordered in November.

 

You may now need to lodge an amended defence in response to the doc'ts you rec'd from MKDP on 22nd Dec'r.

 

But I think the doc'ts the court requires you to file and serve by 10th Jan may actually be your main court bundle (the evidence on which you rely to defend against the claim).

 

I'll ask for input from more legally experienced Site Team ...............

 

[Shanidev]

Yes, your reading is correct. Court does want the final bundle. It seems deadlines only apply to join public. Law firms and debt collectors legal teams get away with murder. I shall wait for your guidance.

[slick132]

Hi Shanidev,

 

Andyorch agrees that the doc'ts required by court are the trial bundle and you will have already had guidance from the court about what is expected.

 

[Shanidev]

Thanks Slick132 for your effort. I not sure exactly what to say this time. Exact wording on court direction was as follows:

 

By 4 pm on 2nd Dec 2013, the defendant if to clarify his defence by filing and serving a statement

a) whether he agrees to the amount he is said to owe Barclaycard, and if not why he disputes, and

b) whether or not he accepts that any debt from him to BArclaycard has been assigned by that organisation to the claimant (if he is in dispute, reasons must be provided)

 

Both parties are to send to the court and to each other any further documents they rely on, to include witness statement of any witness they intend to call by 4pm Jan 10th, parties are warned the court may not allow a document to be produced or a witness heard unless so disclosed.

 

Now to what I have received:

Agreement - is just a generic one. It has not been signed by either party. Barclaycard say as per section o78 or CCA 1974 and 1983 this is the executed agreement. They say amount due is £2108

Statements - say amount due is £1428 nad they are demanding £2214.

DN from Mercers says amount due is £1478

Plus letter from Barclaycard saying debt assigned to Claimant and amount is £1846

 

BTW, the order asked them to send the deed of assignment which they have not.

 

 

My problem - what can I send in the bundle (what should go in there) and what do I ask the court to do?

 

Thanks in anticipation.

Edited January 7, 2014 by Shanidev

[mjt2013]

I've not read the whole thread so apologies if this should be obvious to me but have you complied with the first part of the order about sending a statement by 2nd Dec? There doesn't seem to be any order about the Claimant providing you with anything to enable you to do that so it seems you need to do it in any event.

[Shanidev]

Claimant was to clarify, by 18th Nov 2013, their case by sending to the court and the defendant the following:

 

1. Copy of the contract between defendant and barclaycard relied on
   
2. statement of accountshowing the amount said to be owed by the defendant to barclaycard and assigned to the claimant
   
3. copy of the contract by which the claimant says the debt due from the defendant was assigned to them and a copy of such assignment they say was served on the defendant
   

 

They sent nothing and I submitted my defence statement saying I have not received any thing and ask the court to order them to send it.

[slick132]

Hi Shani,

 

Thanks Slick. Direction order date 11/11/13 MKDP to provide docs by 18th and then I have 10 days to send my defence. I have done mine to say docs not received hence no meanig ful defence. Adked court to either dismiss case or ask for docs to be provided.

 

Can you just confirm if you actually submitted a statement to the court by 28th Nov'r, saying MKDP failed to comply with the courts' directions to produce doc'ts by 18th Nov'r. If so, what did you say and did the court respond at all.

 

[Shanidev]

Thanks for the quick response. I did. There was no response from court but then they do take months to respond to anything. Here is the text:

2. No documents supporting the claim in the particulars have been receivedto date. Claimant was required to send documents to defendant and the court by18 Nov 2013 (ref: Court Directionsdated 11 Nov 2013)

3. For reasons cited in 2) defendant is unable to submit any meaningfuldefence statement.

4. It is denied that I have entered into any agreement with the Claimant.

5. Without admission that any cause of action is shown by the Claimant it isdenied that I am indebted to the Claimant as alleged or at all.

AND the Defendant

Seeks an order that the Claimant’s action is struck out or otherwise isdismissed on the grounds that no evidence in support of their claim has beenproduced.

Alternatively if the court decides not to strike out the Claimant’s case, itis requested that the court orders full disclosure of the requested documentspursuant to the Civil Procedure Rules.

The Defendant respectfully asks the permission of the court to be allowedsufficient time to submit defence (say 28 days) once the Claimant provides fulldisclosure of the requested documents and allows inspection of the originaldocuments.

 

[slick132]

I'd be interested to know why the court failed to acknowledge or respond in any way to your submission in post #60. Perhaps it was because you failed to make a formal application on N244. Maybe worth a call to the court's offices.

 

However, that is perhaps now irrelevant as the claimant produced documents eventually.

 

So you should now focus on defending against the claim based on their inadequate paperwork. Eg the generic unsigned agreement which you'll suggest is unenforceable, Notice of Assignment, unreconcilable figures for the account, etc.

 

Edited February 3, 2014 by slick132
typo

[Shanidev]

So, just another defence statement? and no bundle as the court terms it?

[slick132]

No, it will be your "court bundle", or documents in support of your defence against the claim.

 

A Witness Statement to the court summarising your points of defence against the claimant's POC's.

 

Also documents or printed sections of legislation and/or case law that supports your arguments.

 

[Shanidev]

I understand. I suppose I better get it done tonight. I will leave the case law/legislation bits out becuase I could bite more than I could chew. Thanks for your help.

[slick132]

Post your Witness Statement and defence here if you want - we can maybe get it checked before submission.

 

[Shanidev]

Thanks. I am running out of time. I can't afford to pay special delivery. So, will have to post tomorrow. I have to write in tonights sitting. Let's see how I do. I am just going to give it my best shot and keep fingers crossed. I would appreciate your prayers for me. Thanks once again.

[Shanidev]

1. Court Directions dated xxxxxx asked the Claimant to send to defendant and the court, by 4 pm on xxxxxxx, the following:

a) Copy of the contract between the defendantand Barclaycard relied on;

b) Statement of account showing theamount said to be owed by the defendant to Barclaycard and assigned to theclaimant; and

c) A copy of the contract by which theclaimant says the debt due from the defendant was assigned to them and a copyof the notice of such assignment they say was served on the defendant

2. Nothing came through and I notifiedthe court of this in my first Defence Statement dated xxxxxxx.I also sent a copy of this to the Claimant. I wish to respectfully have itnoted that I haven’t had any acknowledgement or response from the court onthis.

3. On 21st December 2013, Ireceived a package from the Claimant, the contents of which were stated to beCredit Agreement, Default Notice, Notice of Assignment and Statements. Therewas no Contract of Assignment.

4. This came just before the start ofholiday season and I have not had the chance to look through my archives.

5. I have examined the documents in thispackage and feel that the documentation provided is inadequate.

6. Exhibit 1 – the so-called Agreement isgeneric and not signed by either party. As such I believe it is unenforceable.

7. Exhibit 2 – is Notice of Assignmentand not the Contract of Assignment as the Claimant was required to provide.

8. Exhibit 3 – is the Default Notice andstates the Balance to be £xxxx. This is issued by Mercers Debt CollectionsLtd. My understanding is that interest and charges cease to be added to thebalance once the Default Notice has been issued and the Debt is passed on tothe Debt Collection Agencies.

9. Exhibit 4 - shows that charges havecontinued to be added after this date. I have only included last few pages ofthe statements as the Claimant already has full set of these. Page 24 shows thefinal balance as £xxxxx and the Claimant is stating the balance to be£xxxx.

10. It is denied that I have entered into any agreementwith the Claimant.

11. Without admission that any cause of action is shownby the Claimant it is denied that I am indebted to the Claimant as alleged orat all.

AND the Defendant

Seeks an order that the Claimant’s action is struckout or otherwise is dismissed on the grounds that no evidence in support oftheir claim has been produced.

 

[AndyOrch]

Thread tidied and irrelevant posts removed

[Shanidev]

Unsigned CCA. Can it be enforced? Also, can the court schedule hearing at a short notice of say a fortnight?

[slick132]

Hi Shani,

 

Re the court hearing, what were the Courts' Directions exactly, about what the Claimant and you have to do before the hearing.

 

Re the credit agreement, enforceability depends on the date the a/c was opened and how well you present your evidence in defence. But ultimately it is down to the judge on the day.

 

[Shanidev]

Claimant offered a Tomlins Order!! with amounts asked well above what I could afford. So, they are going to court. Let's see what happens. Account was opened around 1998 or just before.

[slick132]

Hi Shani,

 

Was the T.O. offered by letter or as part of Mediation.

 

With the a/c opened before 2007, you have a better chance of arguing enforceability if they don't have adequate paperwork. Still down to how well you prepare, and the judge on the day.

 

Have you prepared and I&E summary to show what you CAN pay per month. This may be relevant if you decide to make or accept an offer to pay monthly.

 

[Shanidev]

It was during a phone conversation. Any advice on preparation!

[slick132]

Hmmm,

 

There really should not be any phone conversations !

 

Have they since confirmed in writing whatever was discussed by phone.

 

You need to have everything in writing or email. Otherwise you have nothing to show what was discussed, offered, agreed to, etc.

 

[Shanidev]

I have confirmed everything in writing and sent a copy to court as well. I was dealing with them in writing but they have been crafty in their responses such as putting a date on the letter then not posting it for a fortnight. And, I get the letter 3 weeks later. I had to call them because they had not responded to my letters and trial date was approaching fast. Now, I wait for hearing with frayed nerves . Anything you can suggest on preparation for the hearing?