MandM vs Egg Loan ***Won with Strike Out***

[MandM]

Now have a CMC hearing in March. Will post up any further info over the weekend

 

M

[MandM]

Have now received further notification from the court as follows;

[MandM]

It came with a cover letter which stated that 'the judge was uncertain, in light of the further information' (given by the claimant), whether I have a reasonable ground for defending the claim!!!!!

 

The court has directed that a hearing be listed at which the issue can be considered and, if necessary, directions for trial given

 

 

I have not yet allowed the other side access to the dodgy DN, no doubt they'll now see it on the 15th.

 

Never been to a CMC so any thoughts on what to expect and how to prepare would be of great benefit .

 

If i'm reading this right, I assume this is can be a good opportunity to get the claim struck out, or if I can show clearly enough that the claim cannot or should not succeed then SJ is a possibility.

 

Any help or ideas on what next?

 

M

[gh2008]

Well then, time to bring things to end ,

 

M

 

Did you apply for a Strike Out?

[MandM]

Did you apply for a Strike Out?

 

I didn't in the end

[gh2008]

Ok, this is why we say strike first.

 

They have now written to the Court basically asking for SJ against you saying there is no merit in your defence - they have suggested that the court make this SJ on their own, but the Court have decided a CMC to look at it then.

[gh2008]

Is there a 'thread summary' anywhere?

[MandM]

Not done one for a while. Will put one up I think

[MAGDA]

Hi m&m what further information has the claimant provided?

 

Magda

[MandM]

Thread Summary.

 

May 09 – Defaulted on loan

 

June 09 – Solicitors involved

 

End July 09 – Summons received from Northampton. No attached paperwork

 

Aug 09 – Embarrassed defence submitted (Post 7) – Draft Directions Post 32

 

End Sep 09 – AQs arrive

 

3rd Oct 09 – spotted problem with their DN (prescibed wording missing) http://i983.photobucket.com/albums/ae316/slinkymary50/Top2.jpg

 

4th October AQs completed (Posts 69 to 77) – Directions Post 82

 

Received Sols AQs which had attached; a copy of the agreement with a set of T&Cs which did not tie up correctly (wrong ones), a spreadsheet showing how they arrived at their POC figure but showing a random amount of about £600 to make their figure correct, and a template of a DN together with a WS stating that everything enclosed is correct!

 

All documents posted up in posts 142 to 146

 

22nd Oct 09 - General Form of Judgement or Order (form N24) made without a hearing. Gave the claimant until 5th Nov to submit the docs upon which they rely.

 

7th Nov 09 – Received the same docs AGAIN from the Sols on which to base my defence.

 

19th November – Defence submitted to court. Main details are

(i) The DN is missing prescribed wording (does not mention that it was issued in accordance with Sec 87 of the CCA 1974.

(ii) The sum claimed on their POC is incorrect and does not tie up with anything (out by about £600)

(iii) The T&Cs supplied are not correct for the agreement supplied. Picked out half a dozen or so discrepancies where the ‘clauses’ mentioned on the agreement were either missing or elsewhere in the T&Cs to where they were supposed to be.

 

I believe that the T&Cs supplied were their up to date ones so had a few extra clauses and some changes.

 

5th Dec 09 – received Form N24 from the court asking for further directions. As follows;

Draft Order for Directions

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order file and serve the following:

 

* Copies of the Credit Agreement referred to in the Particulars of Claim, and any documents referred to within it which complies with the Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, which the claimant seeks to rely upon. Copies of original document only will suffice.

 

* Copy of the Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, as issued to the Defendant and which the claimant seeks to rely upon.

 

* Copies of all original statements for the duration of the alleged agreement, used to establish a balance on the claimants Particulars of Claim dated XXXXXXX

 

* Copies of any other document to be relied upon

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

Having regard for the Overriding Objectives it is averred that without disclosure of the above documents the Claimants case can not proceed and this is regarded as a further frustration to intimidate me in theses proceedings.

 

If the Claimant is unable to produce the documents to verify their claim it is requested that this matter be struck out pursuant to CPR 31 .8

Cover letter was also sent to Sols confirming the same.

 

14th Jan – received notice from the court that they had used my Draft Directions and issued them to the Sols – but given them a further 28 days to comply.

 

2nd Feb – Received from the Sols the following

(i) The generic DN as received previously and a screenshot showing when it was sent.

(ii) A copy of the CCA together with the same incorrect T&Cs that they have been sending since October.

(iii) 4 screenshots showing the payments made to the account and the account balance – again, the figures are not as on the POC. They also made the following statement “Statements are produced on an annual basis. Copy statements have been requested but it is unsure as to when these will be received. The screenshots provided show all payments received to date on the account”.

 

4th Feb – A spreadsheet received from the Sols showing all payments made on the account – it is JUST a spreadsheet so not on Egg headed paper and it’s headed Account Statement For The Period. It then shows on a single page all transactions against the account. Again, none of the figures shown tie up with the POCs figure.

 

Now – have received the CMC/Interim Hearing Notice in Post 377

[MandM]

Letter to the court

 

NOW POSTED BELOW..

 

So, where to next?

 

M

Edited February 21, 2010 by MandM

[MandM]

Updated>>>>>

I am in receipt of your General Form of Judgement or Order dated 17th February 2010 and I am a little surprised at the contents therein.

 

The claimant has not complied with the directions given by the court on 13th January 2010 and I assumed, as a litigant in person, that the court would deal with the claimants non-compliance and that the claimants case would be ‘struck out without further order’ as stated on the Order for Directions.

 

In fact, the claimant has failed to comply with any of the directions given and detailed as follows;

 

(i) Default Notice – The Order for Directions stated * Copy of the Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, as issued to the Defendant and which the claimant seeks to rely upon.

 

The claimant has submitted a ‘specimen’ Default Notice and has requested sight of the original in my possession. I am somewhat bemused at this as I have submitted a true copy previously with my defence and will, of course, bring the original to court. The claimant is fully aware that without a compliant Default Notice then their case has no prospect of success in court.

 

(ii) The Agreement – The Order for Directions stated * Copies of the Credit Agreement referred to in the Particulars of Claim, and any documents referred to within it which complies with the Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, which the claimant seeks to rely upon. Copies of original document only will suffice.

 

The claimant has again submitted a copy of the original agreement, again with a copy of the incorrect terms and conditions. The correct terms and conditions have been requested repeatedly from the claimant and the irregularities between the agreement and the terms and conditions have been highlighted within my defence submitted.

 

(iii) Statements – The Order for Directions stated * Copies of all original statements for the duration of the alleged agreement, used to establish a balance on the claimants Particulars of Claim dated 27th July 2009.

 

In their letter of 2nd February the claimant stated they were awaiting statements from their client as these were only produced on an annual basis. On the 4th February the claimant sent a one page ‘Statement of Account’. The claimant appears to have overlooked the directions “used to establish a balance on the claimants Particulars of Claim” as again, the figures given do not establish the sum shown on their Particulars of Claim.

 

 

In light of the above I respectfully request that the claim be struck out without further order in accordance with the courts Order for Directions dated 13th January 2010.

 

Yours faithfully,

 

MandM

[seriously fed up]

As Magda observes, what is the "further information" that seems to have prompted the court to this course of action? Do you know what it is? Have you had sight of it? If not, I would suggest that you should insist on both these things.

[MandM]

As Magda observes, what is the "further information" that seems to have prompted the court to this course of action? Do you know what it is? Have you had sight of it? If not, I would suggest that you should insist on both these things.

 

Hi SFU,

 

The further information is the docs mentioned in my letter in the post above. I would assume that they have written to the court and confirmed that they have complied with the courts directions - or that the court have decided of their own initiative

 

M

[MandM]

On the front cover sheet sent with the General Form of Judgement or Order it states 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.

 

I guess my letter fulfills this.

 

M

[the_shadow]

On the front cover sheet sent with the General Form of Judgement or Order it states 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.

 

I guess my letter fulfills this.

 

M

 

Not really, an application is filled out on form N244 complete with evidence and a fee

 

Your letter is an informal request which may or may not be accepted by the court.

 

S.

[MandM]

Not really, an application is filled out on form N244 complete with evidence and a fee

 

Your letter is an informal request which may or may not be accepted by the court.

 

S.

 

Thanks Mr S

[MandM]

Not really, an application is filled out on form N244 complete with evidence and a fee

 

Your letter is an informal request which may or may not be accepted by the court.

 

S.

Was received on Friday - so in that case I have this week to apply by N244 to have their case struck out?

 

M

[mandyjayne]

mandm

This is a thread on letter - v - N244

http://www.consumeractiongroup.co.uk/forum/legal-issues/134001-suggested-letter-where-claimant.html

 

I did a letter, but there are varied opinions on what one to use!!

 

MJ

[MandM]

mandm

This is a thread on letter - v - N244

http://www.consumeractiongroup.co.uk/forum/legal-issues/134001-suggested-letter-where-claimant.html

 

I did a letter, but there are varied opinions on what one to use!!

 

MJ

 

ty MJ. I'm actually subbed to that (but forgot about its existence lol)

 

Have had a quick read and I think I will adjust my own letter to suit.

 

Many thanks

 

M

[MandM]

So, the more aggressive approach is by N244 which i'm quite happy to do.

 

If it's on an application then the DJ will, I assume, have to consider it.

 

I could actually do both, as in put the letter in and then follow it with an application also. Or is that just unnecessary?

[MAGDA]

Hi m&m, the N244 doesn't have that much space on it, so when it comes to giving your reasons for the strike-out, you could just say, please refer to attached letter. Save you doing it all again anyway.

 

I'm sure you know this already, but you can complete the N244 online and just print it off. Sorry if I'm stating the obvious:)

 

Magda

[MandM]

Hi m&m, the N244 doesn't have that much space on it, so when it comes to giving your reasons for the strike-out, you could just say, please refer to attached letter. Save you doing it all again anyway.

 

I'm sure you know this already, but you can complete the N244 online and just print it off. Sorry if I'm stating the obvious:)

 

Magda

 

Thanks Magda.

 

Rotten cold so nothing's too obvious at the moment. Def should have had a day in bed.

 

Have made a few small changes to the letter to give it a bit more venom so the 'as attached letter' works well for me

 

M

[gh2008]

TBH I would not apply to have the order set aside.

 

The order is that the Court have decided a CMC would be a good ides - you writing to the court saying they're talking bowlarks may put their backs up somewhat!!

 

What you *could* do would be to apply for the claim to be struck out due to failure to comply with the orders and previous CPR breaches etc

 

That should then be heard at the same time.

 

At the moment, the hearing is for further directions or Summary Judgement either way OR your defence being struck out (and SJ against you by default)

 

At the moment the option of the claim being struck out is not being considered yet there was an 'unless' order already issued that they have failed to comply with.

 

If you're going to do it it needs to happen ASAP as normally there needs to be 14 days notice - but as there is already a hearing it should be ok

 

It will also mean they will have to submit their argument against it (7 days before) and you can submit yours in answer and for it (3 days before)

[MandM]

What you *could* do would be to apply for the claim to be struck out due to failure to comply with the orders and previous CPR breaches etc

That's the bit i'm concentrating on . I was going to submit the N244 requesting that the claim be S/Out due to them not complying with the courts previous 'unless' order. (There's no problem with CPR as it was never used - all disclosure has been done through directions).

 

The letter that i've sent just points out my 'surprise' as a LiP that the court appear to have accepted the other sides documents, although all of the documents they have submitted are those used previously i.e. wrong T&Cs, no confirmation from statements proving the POCs figure, template DN.

 

Up my sleeve I also have the other DN which is missing (the very important) prescribed wording which the other side have now 'requested' to see.

 

 

At the moment the option of the claim being struck out is not being considered yet there was an 'unless' order already issued that they have failed to comply with.

So I want to bring this back to the fore. According to the wording on the order I have 7 days (from service) to apply to have the order amended which still gives me over 2 weeks left .

 

 

Now the tricky bit - the other side have expressed a wish to see the DN - should I write to them in the meantime and say 'OK, your case cannot succeed with this DN, therefore, i'll let you see it and give you the opportunity to withdraw'.

 

I'm hesitant about using the dodgy DN as part of the S/Out, because if the judge doesn't go with it then that knocks out a large lump from my defence. Which is why i'm thinking along the lines of SO due to non-compliance as the safer route for now.

 

What do you think?