Marlin/phoenix - Credit Card - N1 Received ** DISCONTINUED **

[Craftygirl42]

if defence has been exchanged and they pull out

 

not a chance on bringing another claim

 

So that account cannot be claimed again by anyone....even if its sold. Just want to clarify our position here. I was thinking about Spam and I dont believe she had put in her defence before it was discontinued.

[Spamalot]

Hi Crafty...

 

Here's the CPR...

 

PART 38 - DISCONTINUANCE - Ministry of Justice

 

If you've submitted a defence the Claimant would have to get courts permission to resurrect a claim... in my case they discontinued a few days before defence was due in.... they ARE liable for your costs and if you don't wish to set aside the discontinuance and go for a judgement order against Phoenix then you can put in a wasted costs order... not sure about the selling on of the 'debt' though..

 

Spam.

[Craftygirl42]

Thanks Spam, off to look for wasted cost orders....god this does my head in....but hey it looks like its good news anyway.

 

If they did sell it on, then I would have no hesitation in telling the new lot, what happened and to stick it.

[Spamalot]

Hi Crafty...

 

Look no further... all the info you need should be on this thread..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/206038-cabot-ding-ding-round.html#post2272500

 

Spam.

[postggj]

there you go craftygirl

 

game over

 

spam

 

thanks for the link

 

book marked

[Craftygirl42]

Thanks both of you for your help. Off to read that thread.

 

I will really be celebrating next week if my CC goes a similar way, but not holding my breath yet. Otherwise its a fight about the default notice, still this is one off my plate,

[Spamalot]

Well done Crafty..

[Craftygirl42]

Right, this morning I received an AQ from MC for my CC. Just a quick recap, they sent me a copy eventually of the CCA, I will get hubby to scan it in later tonight and post it on here, but suspect its ok.

 

This what was said about the DN

 

We confirm Default Notices issued by HSBC are standard in a prescribed format in compliance with the requirements of the Consumer Credit Act 1974. HSBC issued the default notivce to you and it was not returned by the PO. The Default Notice is deemed validly served even if you did not receive it, in accordance with Section 176(2) of the Consumer Credit Act 1974.

 

They have stated on their Aq that they want to come to a settlement but unless they provide me with a default notice, I dont want to attempt settlement. What happens if the mediation dept contact me. We did agree another case via mediation, but that was for a OD.

 

Any guidance from here please. Do I just wait for a trial date to be set, or wait for a mediation appointment, but I dont want to mediate without the correct documentation

[Craftygirl42]

Right I have received a court order re my credit card and I have to sort out disclosure in a couple of weeks. Can anyone point me in the right direction please.

 

I am happy to say that the judge has ordered that Marlin provide the default notice and evidence of service amongst other things

[Craftygirl42]

Had a bit of a read around. Just not sure what documents I should enclose.

 

I have lots of Without Prejudice letters from them, which gets my back up as they are ones that they admit they dont have a DN. I take it that I still cant use these

[MAGDA]

Hi Craftygirl, it's very straightforward really, you need to complete an N265, the main part you will be completing will be the section "I have control of the docs numbered and listed here...."

 

All you have to do is list any documents you hold relevant to your defence, i.e., letters from you to the claimant, letters from the claimant to you, you should give each item a ref no. such as 1,2,3 etc. or something like 0.1, 0.2 and the date of the letter, so that the claimant can ask to see a particular item if they want.

 

For correspondence between you and the court I would just put - various from xxxxx date to xxxxxxxx date as I doubt if there will be that much anyway.

 

and then you can include everything else such as POC that you have received etc, under Statement of case common to both parties - various

 

The above should be numbered in sequence following on from the rest.

 

At the beginnig of the N265 (front page) you can just enter info as relevant. i.e., "I am required to make disclosure under the order made by the court on xxxxxxx date.

 

I did not search for documents pre-dateing : xxxxxxxx (enter relevant date - the oldest document that you are including)

 

Located elsewhere than : The records in the defendant's possession.

 

In categories other than : those relevant to this claim.

 

Everything else just put N/A or tick (or not) as relevant.

 

then just sign and send off, you don't need to send a copy to the court unless they have specifically said you should.

 

Also, no need to include case law/legislation which a lot of people do as these are in the public domain and it isn't necessary to list them.

 

Hope this helps, if you need any more info, let me know,

 

Magda

[Craftygirl42]

Thank you Magda, but can I include the Without Prejudice ones at this stage. Its a shame if I cannot, but hey ho

[MAGDA]

were the "without prejudice" letters part of a settlement attempt? If not, as far as I am aware, they are not privileged and should still be disclosed.

[Craftygirl42]

The one that I would have liked to include, has a bit saying

 

In light of the above, we provide you with the last opportunity to settle this and to sign the consent order.

 

The rest of the letter refers to the fact that the DN would have been issued in a standard format which is compliant with the CCA

[MAGDA]

The one that I would have liked to include, has a bit saying

 

In light of the above, we provide you with the last opportunity to settle this and to sign the consent order.

 

The rest of the letter refers to the fact that the DN would have been issued in a standard format which is compliant with the CCA

 

Hi Craftygirl, as far as I know, unless the letter concerned a genuine attempt to negotiate a settlement, then it isn't privileged, so if you feel the letter, on reading all of it, wasn't really concerned with that issue, then you could include it as far as I am aware. Hopefully someone will correct me if I'm wrong.

 

I think I would just include it and argue that it wasn't part of a settlement attempt (if that's what you believe)

 

Magda

[AndyOrch]

What is the meaning of 'without prejudice'?

Where negotiations are said to be 'without prejudice', it means that nothing that is said or done is admissible in evidence in any subsequent trial should the negotiations fail. The object of the exercise is to encourage parties to make genuine attempts to settle disputes, without fear of their discussions - and in particular their potential concessions - being subsequently disclosed in court.

 

There are two circumstances in which 'without prejudice' statements may be admissible in later court proceedings:

• where protection is waived with the express or implied consent of both parties
  
• where a settlement is reached following 'without prejudice' negotiations, but one of the parties subsequently fails to honour the terms of the settlement, and the matter therefore ends back in court.
  

Regards

 

Andy

[Craftygirl42]

So are you saying that I shouldnt use the letter Andy.

 

Its marked without prejudice and mainly is in answer to a letter that I sent requesting a copy of my default notice. They then go on to say I am attempting to fraustrate proceedings cos I wont negotiate a settlement without this.

 

They also say they are providing me with a last chance to settle this and for me to sign the enclosed consent order.

 

It would a great letter to include as they are basically saying they dont have the default notice, but HSBC would have sent me one in the prescribed format. They also so that they will disclose to the court that I wouldnt negotiate a settlement without the default notice.

[AndyOrch]

No definitive yes or no CG It can be construed that if the WP attempt was not in its sincerity and not a truthful attempt to settle you could inform the Claimant that you intend to disclose the matter as it would be invaluable and highlight any untruths that they were using in order to mislead the Court and truth.In short hiding behind the WP in an attempt to misdirect justice.

 

Phew diff to explain that:D

 

Regards

 

Andy

[Craftygirl42]

Thank you Andy

 

I will be giving my disclosure some thought and sorting it out next weekend. Should I stick rigidly to the dates set by the court or should I wait to see what the claimant comes up with first. I will be surprised if I receive anything before the required date.

[AndyOrch]

Thank you Andy

 

I will be giving my disclosure some thought and sorting it out next weekend. Should I stick rigidly to the dates set by the court Yes or should I wait to see what the claimant comes up with first.leave till as late as poss in case you do get sight of theirs I will be surprised if I receive anything before the required date.

Well if you dont application to strike out because non disclosure on time is a strike out offense

 

 

Regards

 

Andy

[Craftygirl42]

Thank you Andy - watch this space please

[Craftygirl42]

Right, just trying to sort out my disclosure, as need to get it done.

 

Just a couple of questions,

 

I am still wondering what I should include. I plan on including letters that have gone either way. Do I need to include the statements and the documentation they sent, they have been advised to include these with their own disclosure. Or should I just include everything I have in my file, just in case I may need it at a later date.

[citizenB]

YEs, better safe than sorry.. list everything. If you want to pop your list on here when it is done.. then perhaps if there is anything that you neednt include we can let you know.

 

Chances are, the one thing you leave off, is the one thing you want to rely on.

[Craftygirl42]

i had a try with the online form, but the gap for the list of docs wasnt big enough, is it acceptable to do it on a seperate sheet and say 'see attached' or am I going wrong here

[Craftygirl42]

Here is the list that I have done on Word and was hoping to attach to the N265. I hope I havent gone horribly wrong here, but still time to sort with some help

 

 

Letters received from Claimant

0.1 – Letter dated 25 October 2007 – Notice of Assignment

0.2 – Letter dated 1 September 2008 - 2nd Notice of Assignment

0.3 - Letter dated 11 September 2008 - Letter confirming they have checked Land Registry and will be considering Court Action

0.4 - Letter dated 17 February 2009 – Letter Before Action

0.5 - Letter dated 17 March 2009 – Confirming they have requested a copy of the Agreement

0.6 – Letter dated 16 June 2009 – Follow up letter

0.7 – Letter dated 18 August 2009 – Letter enclosing statements. Confirm they are unable to supply a default notice

Letters from Defendant to Claimant

1.0 – Letter dated 27 February 2008 – Request for copy of Consumer Credit Agreement

1.1 – Letter dated 18 September 2008 – Account in Dispute letter

1.2 – Letter dated 19 February 2009 – Letter in reply to their Letter Before Action

1.3 – Undated letter – CPR 31.14 request

1.4 – Letter dated 21 June 2009 – Request for copy of the default notice before negotiating a settlement

Letters from Court

2.0 – Particulars of Claim – Form N1

2.1 – Letters from the Court dated 15 May 2009 – 2 October 2009

Various

3.0 - Bundle of Statements from HSBC dated 18 April 2005 until 17 May 2006

3.1 – Statement of Payments from Marlin Financial dated 30 October 2007 to 13 May 2009

3.2 – Credit Card Agreement, includes Application form and letter received from HSBC dated 10 March 2005

3.3 – 2 Notice of Assignments from Marlin Financial

3.4 – Copy of Allocation Questionnaire submitted by defendant

3.5 – Statement received from Marlin Financial dated 10 October 2008 to 20 October 2009

Edited November 7, 2009 by Craftygirl42
Added more info after a read around