Creation Consumer Finance claimform - old Fridge loan - struck out - they tried again - **WON+COSTS TWICE**

[Toulose LeDebt]

You should find some very useful pointers in this thread.

 

Claim struck out - can creditor make new claim?

 

(Diamondgirl your claim was struck out ie a Judicial decision was made and a notice to vary, stay or set aside was served upon Link with if I remember a seven day period of notice in which to apply. If they ever were stupid enough to come after you again for the same account you would finish then off in much the same way as detailed in the linked thread. please don't worry that it might start all over again, they had their chance and muffed it).

[Toulose LeDebt]

Please can someone advise:

 

*if a claim has been deemed to have been served on 11 July 2009, and they other side have acknowledged and stated they will defend, is the 28 days up on the 8th or 10th August 2009.

 

 

Have you served this claim on them or vice versa?

 

 

* also Please can you also advise if I have won a claim, it has been struck out for the claimant failing since March 2009 to submit a response, with a costs order in my favour.

 

 

On what date was the claim struck out?

Did you receive a notice along the lines 'It is ordered that........'?

If yes what was the date of that notice and how many days did the Court give the claimant to respond by way of an application for stay, variation or set aside?

On what date did the claimant apply to have the strike out overruled?

[postggj]

toulouse ledebt

 

not going off topic

 

say the claiment withdrew before a defence was filed then say two weeks later issued a fresh claim with the same poc

 

the point ime getting at on this one is no defence files as the claiment just withdrew

 

would the permission of the court be needed and would the seven days apply

[Toulose LeDebt]

toulouse ledebt

 

not going off topic

 

say the claiment withdrew before a defence was filed then say two weeks later issued a fresh claim with the same poc

 

the point ime getting at on this one is no defence files as the claiment just withdrew

 

would the permission of the court be needed and would the seven days apply

 

Not really off topic as it's all concerned with the circumstances under which a claim can be reinstated.

 

The answer to your question is 'No' permission of the Court would not be required if the claim was discontinued before a defence was filed.

 

The seven days is the time allocated by the Court during which the claimant can make an objection to any striking out of their claim (effective 7 days from receipt not seven days of order deemed served).

 

As in your scenario the claimant has fallen on their sword and discontinued there has been no judicial decision made and thus no time to appeal it was ever neccesary.

 

CPR 38.7 both parts (a) and (b) must be met in order that the claimant needs permission from the Court.

 

Discontinuance and subsequent proceedings

 

38.7

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

 

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

[intree]

the order was dated 15 June 2009, they said they did not receive this until 10 July as they were moving offices, however on 10 July I asked for the case to be struck out and a cost order to be made, this was made on 15 July 2009, they waited all this time and then I submitted a claim for detailed assesment and they then ask the court to reinstate, despite the fact that they had been given sufficent time and 2 court orders to respond to my amended defence and failed.

 

On both the Orders they were given 7 days to have the order set aside - stayed or varied - they did not respond.

 

The claim was made against another company who refused to supply documents, they were given 14 days and then 28 after acknowledgement, I understand that their time is up on Monday.

[intree]

the order for costs was dated 15 july 2009, but I received this on 31 July 2009, so they are arguing that they have applied within time to have the case reinstated from the 31 July 2009, the date they received the second Order informing them of the Strike out being recorded as detailed in the 15 June 2009 Order, and then a new Order in that for Costs dated above.

[Toulose LeDebt]

Was it the claim that's in this thread LINK ?

 

And this order?

 

Before DJ XXXXXXXX Sitting at xxxxxxx County Court

 

IT IS ORDERED THAT

 

Upon the courts own motion. the Court has made this Order of its own initiative without a hearing, If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it.

 

1. Unless by 1/7/09, the claimant do not comply with the order dated 31/3/09, the claim will bestruck out without further order.

 

2.The Hearing on 3/8/09 be vacated if the claimant has not complied.

 

date 15 June 2009

 

and the Judgment

 

General Form of Judgement or Order

 

Before A PROPER OFFICER sitting at leicester County Court.

 

Upon the Courts own motion. The Court has made this order of its own initiative without a Hearing. If you object to this order, you must make an application to have it set aside, varied or stayed within 7 days of receving it.

 

IT IS ORDERED THAT upon non-compliance of the order dated 31 March 2009 by the claimant to claim, claim be struck out and the Hearing on 3 August 2009 be vacated.

 

dated 07 July 2009.

 

??

[intree]

Yes Toulose ledebt

 

thats the one - thanks for your advice

[intree]

the final order dated 15 july was as follows:

 

Before DJ XXXXXXXXXX Sitting at Leicester County Court

 

Upon reading a letter from the defendant dated 10/07/09 and the claim having already being struck out pursuant to order dated 07/07/09

 

IT IS ORDERED THAT:

 

Claimant pay the defendants costs to be subject to a detailed assesment if not agreed.

 

Dated 15/07/2009

 

this was in response to the following request:

 

We spoke to the Court yesterday and were advised to write to the court and that we did not need to file in another N244 application, but have to send in a letter to the Court for making the request below and attached.

We wish to advise the Court that the Claimants have failed to respond to the request for information at all, their claim stands struck out, in order to prevent any further abuse of process and reissuing of this vexatious claim we respectfully ask this matter is now officially closed.

Accordingly, please can this file be put before the District Judge, who has knowledge of this claim to make the appropriate orders, for Strike out and an order for costs we have incurred as listed on the schedule of costs which are attached.

We thank the Court for its assistance in this matter.

 

 

THIS WAS THE REQUEST TO THE JUDGE:

 

 

Further to the order made by District Judge XXXXXXXXXXXXXX sitting at the Leicester County Court on 30 March 2009. I note that the claimant failed to submit any response to the amended defence, to support their case, despite being ordered to do so on two occasions. The last Order dated 15 June 2009 made by District Judge XXXXXXX

This claim is now struck out, however after speaking to the Court on 9 July 2009, we have been advised to write to the Court and ask the matter be put before the District Judge to have the matters below addressed:

1. I respectfully ask for the matter to be placed before the District Judge so the Order for the Strike out can be officially recorded as detailed under CPR Part 3.5.

2. I respectfully request the District Judge to make an order for costs as detailed in the Schedule of costs (attached) due to the non compliance of the claimant and the brining of this claim, with no prospect of success and with no view to defending in Court.

The Claimants unreasonable approach in defending a claim it always intended not to defend, has directly incurred myself unnecessary costs as outlined in the attached Schedule of costs, and therefore I respectfully request that the Court consider awarding these costs, or such costs as it deems appropriate, as outlined in the Civil Procedure Rules 27.14(2) (g):

(2) The court may not order a party to pay a sum to another party in respect of that other party's costs, fees and expenses, including those relating to an appeal, except – (g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.

Please accept my sincere apologies for the waste of the courts valuable time spent processing and managing this claim. I do wish to inform the court however, that the decision to enter into this litigation was not taken lightly, and that ample opportunity was given to the Claimant to resolve this matter by way of negotiation before proceeding with this claim. Regretfully, all attempts at meaningful dialogue were either rebutted or ignored.

 

[intree]

Any Comments Appreciated

[Toulose LeDebt]

Any Comments Appreciated

 

 

CPR 3.9 should see this attempt refused. TBH they're trying to use the judgment to circumvent the striking out as they had seven days to respond and failed to make any representation within time.

I'd be surprised if the Courts permitted this as they had 3 months to comply with an order and failed, seven days to comply with an order and failed and then a further seven days to comply with a judgment order and failed and then came back to Court late and with a flimsy unprofessional excuse.

 

If the Courts do permit the application you will get seven days notice in which to apply for a variation, set aside or strikeout, you will use that period to submit an application that the claim be struck out (don't worry we'll guide you through that if the time comes).

[intree]

Thanks so much - as soon as I hear from the court I will post up

[intree]

I have just spoken to the court and they have advised that the claimants have written to the court advising of a change of address, they have stated they did not receive the judgements or the orders from the court, as a result they have advised they will be making a full application to the court (waiting for the costs issue to be addressed too) in due course.

 

I am absolutely astonished that they can say this, they have asked the Court to consider the application when this is put in, I understand from the Court that they have not done this as yet.

 

I dont know what to do, as they have not responded to the cost assesment notice and have now done this, again as I stated before they have a defective default notice and terminated the account on that.

 

ANY HELP APPRECIATED PLS

[intree]

I DONT KNOW IF I SHOULD SEND THIS OR WAIT UNTIL THE APPLICATION IS SENT BY THEM.......WILL I BE ASKED FOR MY VIEWS:

 

DRAFT LETTER

We spoke to the Court today and have been advised that the Claimants in this matter have written to the Court and advised that they are to make a application to set aside the Judgments’ of District Judge XXXXXXX and District Judge XXXXXXXX made since and after my defence has been served on the claimants since March 2009.

I believe that this attempt to re-litigate is both an abuse of process and subject to Res Judicata, especially when they have had every opportunity since March 2009 to have the orders set aside or varied within the allowed timescales on no less than 3 occasions, they have failed to do so.

Moreover, such a large firm of solicitors with the knowledge and experience of the courts overriding Objective, must have had knowledge of the time they were moving offices, as this was not a temporary move, they would have had a redirection service in place, as confirmed by the fact that they received my faxes since March 2009, the last of them being 20 July 2009 and 31 July 2009, which have been copied to the court.

It is also clear that the abuse of process continues in this claim, in that they have not made any attempt to answer the points as ordered, ignored the orders and then, and only upon application by me for costs and this being awarded, have they stated that they received none of the orders.

Clearly the claimants have issued a claim, terminated with defective documents, they have failed to follow court procedures they are fully aware of and then come back to re-litigate, this claim with a very poor and unreasonable excuse that they did not receive the documents, since March 2009.

I object to the Claimants application as a abuse of process and would like to have the matter put before the District Judges who have made the Orders for costs and Strike out, as they will have knowledge of the claimants unreasonable behavior in this claim to date.

[Gazza112]

Hi Intree

 

That's discusting in what there doing to you.

This is just a thought but have you tried to find if there still registered at the old address. If so that could go in your favour, it's just a thought as you know what these companies are like in fobbing people off.

 

Gaz

[intree]

Thanks Gazza how do I do that and will that confirm when they moved out etc.....I am just so annoyed about all this.

[noomill060]

sub

[intree]

just checked Companies house and its their new address not sure from when but on the law society it is still the old address.

[Toulose LeDebt]

I've PM'ed you an idea intree, best not to say everything on the thread, you never know who might be watching.

[intree]

Thanks Toulose LeDebt

[intree]

I just can not believe that they have had 3 warnings since march then 2 orders for responding within a certain timescale and can now come back when I put a cost application in to say they want to reinstate as they never received the judgement.........how willing are the courts to allow this? especially when a costs order has been made etc etc

[Toulose LeDebt]

Companies House registered the change of address from:

 

ELITE HOUSE, 15 BEECH HALL

STREET, WIGAN

LANCASHIRE

WN6 7HX

 

to:

 

OLYMPIC HOUSE

MAPLE COURT

MAPLE VIEW

SKELMERSDALE

WN8 9TW

With the filing of a form 287 on 30th June 2009. Legally you or the Courts were permitted to serve documents upon that company at any time up untill the fourteenth day from the 30th June at the OLD address. Of course moving at the end of June does in no way explain why they ignored Court orders throughout March, April, May and June. Legally anything served at their old address prior to 13th July 2009 is deemed served under the Companies Act 2006.

 

 

I think where you will get them is in The Companies Act 2006:

 

87 Change of address of registered office

(1)

A company may change the address of its registered office by giving notice to the registrar. (30th June 2006).

 

(2)

The change takes effect upon the notice being registered by the registrar, but until the end of the period of 14 days beginning with the date on which it is registered a person may validly serve any document on the company at the address previously registered. (14 days expired on 13th July 2009).

 

(3)

For the purposes of any duty of a company— (a)

to keep available for inspection at its registered office any register, index or other document, or

 

(b)

to mention the address of its registered office in any document, (have they written to you at all during this period if so what address was on their papers).

 

 

a company that has given notice to the registrar of a change in the address of its registered office may act on the change as from such date, not more than 14 days after the notice is given, as it may determine.

[Gazza112]

Hi Intree

 

That's a great bit of info that Toulose LeDept has put up.

I certainly would stick by your guns and reject they claim that they was moving office. As explained by Toulose in the above thread.

 

gaz

[intree]

Thanks so much for that information, I am so pleased I have this web site, I think in all honesty I would not be here to cope if I did not have all you genuine and helpful people on here.

 

Thank you so much I am currently sat here with a massive headache so going to have a tablet and come back soon................Thank you all

[intree]

they have never informed me of a change of address or the Court, as the court was writing to their old address from what i gather until last week, I sent them a fax on 20 July to their old fax and they responded to this confirming that they did not receive the judgemenbt dated 15 June 2009 until 10 July 2009, what the hell have they been doing for the last 28 days, laying eggs??

 

Oh they just pee me off, you would think that they would just be honourable and admit defeat, but I understand these bullies can not accept that - It is companies like these that make people commit suicide, but they will not do that on this occasion as long as they keep lying.

 

Thanks again