Pumpytums goes to Northampton Help Please!

[vjohn82]

I would file the defence first. Then send them a copy along with a letter inviting them to discontinue on favourable terms. State the amount of time that you have been researching their case, going back over old documentation etc... ham it up if needed.

 

State that there only sensible option is to discontinue etc... offer a deadline of 7 DAYS!!!

 

Then wait. If they write to you asking to discontinue without costs you write back refusing. If they send a Tomlin Order and it contains a clause "no order as to costs" you again refuse outlining 7 days before a strike out application is made.

 

Then wait. Post up any correspondence in the meantime.

 

Then see if discontinue without consent... if they do not then they are stupid. If they do then you file an N252 but we'll come to that later ;-)

[TheFonz1]

A very informative thread Pumpytums. I have just received a claim form from Northampton regarding a Credit Card nearly 6 years old passed on to several DCA's (the usual suspects) and now with Arrow Global Guernsey.

 

I will start my own thread of course but do you mind if I use some of your letters (obviously tweaked a little) with regards to my defence?

 

Thank you in Advance regards TheFonz1 trying to stay cool but obviously a little nervous.

[foolishgirl]

Following up from your posting elsewhere, Pumpy, as requested.

 

I absolutely agree with VJ's response/defence & if/when they discontinue go for your wasted costs immediately (I hope you did last time too!) I would also be looking to send a very stiff letter to them requiring appropriate amendments to your credit files & compensation for the harrassment etc. & follow it up with a claim of your own if necessary.

[pumpytums]

Hi Fonz & FG,

please be my guest I hope they can help in some way.

 

I never went for wasted costs the first time round it had actually been allocated to the small claims track when they decided to discontinue. With regards to a counter-claim I'm still considering it.

 

It still boggles my mind that a respected (yeah right) company behaves in this shoddy manner. Prior to ****** united issuing a claim the first time I tried to come to an arrangement they were not interested. I tried to speak to the OC to voice my concerns no chance this is even mentioned in my SAR. I wrote to the OC to make them aware of my concerns no response. I have written multiple letters to the OC asking why they behaved in such a crappy manner they didn't even apologise, in fact they have lied multiple times. Shoddy very shoddy, they must take lessons from their Spanish CEO.

 

My stiff letter was sent no response yet, and their time is up. I would imagine it's actually been passed to a real solicitor and not a pretend one.

 

I was reading up in my Civil Procedure book last night their claim is very clearly an abuse of process no questions asked. The interesting thing was that the book mentioned going for a strike-out prior to a defence been made or before allocation takes place.

 

So to be pro active can anyone point me to a thread on how I apply for a strike out please? I'm not going for one yet I would just like to see how it's done.

 

Thanks

 

Pumpytums

[pumpytums]

Well at long last I have had a reply from the Claimants sols :-

 

Apparently they reckon CPR 38.7 does not apply and have sent me copies of the new DN which I have never seen before (layout is correct its dated after they repurchased it apparently still no NOA) a copy of my agreement and statements from when they bought it back. Oddly I have no copy of the NOA I wonder why?

 

I'm rather confused how can arrears go from a figure to the full amount and then back to another figure, how bizarre?

 

They have offered me the chance to withdraw my defence which is nice of them.

 

I quote

 

"We can confirm that CPR 38.7 is not applicable to this claim on the grounds that the Claimant has not

previously issued any claims against you."

 

Which is very odd as the previous Claimant was the owner as is the alleged new one. So basically they are the same Claimant, if CPR 38.7 didn't apply you could assign a debt to different companies for infinity and each one could issue claims. Sounds rather vexatious to me.

 

They have confirmed the account was assigned absolutely to Sink. Apparently it was passed back to the OC, where's my NOA then boys?

 

I tell you what my grammar is bad theirs is absolutely atrocious.

 

 

Any help would be appreciated, do I write back or go for a strike out?

 

 

Pumpytums

[The Mould]

Well at long last I have had a reply from the Claimants sols :-

 

Apparently they reckon CPR 38.7 does not apply and have sent me copies of the new DN which I have never seen before (layout is correct its dated after they repurchased it apparently still no NOA) a copy of my agreement and statements from when they bought it back. Oddly I have no copy of the NOA I wonder why?

 

I'm rather confused how can arrears go from a figure to the full amount and then back to another figure, how bizarre?

 

They have offered me the chance to withdraw my defence which is nice of them.

 

I quote

 

"We can confirm that CPR 38.7 is not applicable to this claim on the grounds that the Claimant has not

previously issued any claims against you."

 

Which is very odd as the previous Claimant was the owner as is the alleged new one. So basically they are the same Claimant, if CPR 38.7 didn't apply you could assign a debt to different companies for infinity and each one could issue claims. Sounds rather vexatious to me.

 

They have confirmed the account was assigned absolutely to Sink. Apparently it was passed back to the OC, where's my NOA then boys?

 

I tell you what my grammar is bad theirs is absolutely atrocious.

 

 

Any help would be appreciated, do I write back or go for a strike out?

 

 

Pumpytums

 

Hello Pumpytums

 

I must admit, I have not read through your entire case.

 

Reading from above, it would appear that CPR 38.7(b) is applicable, whilst the present claimant may not have previously issued a claim against you, he is, however, issuing a claim that is effectively the same as that discontinued by the party who has now (apparently) re-assigned the contract back to its original owner.

 

If he has not served the statutory notice (the DN) before attempting to enforce the re-purchased contract, then Harrison V Link is the authority you can rely upon in respect of 'no entitlement to proceed to enforcement'.

 

Request proof of service of the DN, request a copy of the NOA and proof of service thereof and request a copy of the Deed of Assignment from the claimant, also ask the claimant what grounds does he rely upon to substantiate his standing before court, ask him what is his cause of action against you?

 

Kind regards

 

The Mould

[pumpytums]

Hello Pumpytums

 

I must admit, I have not read through your entire case.

 

Reading from above, it would appear that CPR 38.7(b) is applicable, whilst the present claimant may not have previously issued a claim against you, he is, however, issuing a claim that is effectively the same as that discontinued by the party who has now (apparently) re-assigned the contract back to its original owner.

 

If he has not served the statutory notice (the DN) before attempting to enforce the re-purchased contract, then Harrison V Link is the authority you can rely upon in respect of 'no entitlement to proceed to enforcement'.

 

Request proof of service of the DN, request a copy of the NOA and proof of service thereof and request a copy of the Deed of Assignment from the claimant, also ask the claimant what grounds does he rely upon to substantiate his standing before court, ask him what is his cause of action against you?

 

Kind regards

 

The Mould

 

Hi Mould,

the OC transferred by way of an absolute assignment the ownership of the debt to a third party, the third party then proceeded to litigation knowing their claim was vexatious and had no prospect of success. Apparently the third party must have by way of an absolute assignment returned the debt to the original owner. In my humble opinion the name of the Claimant is indeed different, but their relationship to the debt and the Defendant is identical as are the particulars of the claim. It's obvious to me that CPR 38.7 was designed to stop similar claims for the same thing being issued in a legal game of "pass the parcel" or "musical chairs".

 

Their is some legal standing for different parties issuing similar claims but the one I remember is a company trying to sue another company I think failing and then the individual who owned the company trying to sue the company in a personal role and cpr 38.7 not applying. In this case their relationship to the case was quite different, the basic facts were the same however. Obviously in my case this does not apply.

 

The DN they have sent me I have NEVER received that is to say I may or may not have received a DN but it is for the Claimant to prove. The problem is I believe there was a case recently that service of a DN is taken a red if it's posted. The only thing I could perhaps do is request that the DN is accompanied by a certificate of authenticity or they state that it is a true copy in their WS. If they rely upon a document that is proven to be false could they then use a document I supply to counter theirs?

 

I think I will send a CPR31.14 requesting the full statements (to determine the balance), a copy of the NOA, proof of service of the NOA, and deed (good luck with this one though) I will also request a information about proof of service of the DN.

 

Can you explain Mould what you mean by "What grounds does he rely upon to substantiate his standing before court, ask him what is his cause of action against you?" please ?

 

Thanks

 

Pumpytums

Edited May 12, 2011 by pumpytums

[Guest]

Well at long last I have had a reply from the Claimants sols :-

 

Apparently they reckon CPR 38.7 does not apply and have sent me copies of the new DN which I have never seen before (layout is correct its dated after they repurchased it apparently still no NOA) a copy of my agreement and statements from when they bought it back. Oddly I have no copy of the NOA I wonder why?

 

I'm rather confused how can arrears go from a figure to the full amount and then back to another figure, how bizarre?

 

They have offered me the chance to withdraw my defence which is nice of them.

 

I quote

 

"We can confirm that CPR 38.7 is not applicable to this claim on the grounds that the Claimant has not

previously issued any claims against you."

 

Which is very odd as the previous Claimant was the owner as is the alleged new one. So basically they are the same Claimant, if CPR 38.7 didn't apply you could assign a debt to different companies for infinity and each one could issue claims. Sounds rather vexatious to me.

 

They have confirmed the account was assigned absolutely to Sink. Apparently it was passed back to the OC, where's my NOA then boys?

 

I tell you what my grammar is bad theirs is absolutely atrocious.

 

 

Any help would be appreciated, do I write back or go for a strike out?

 

 

Pumpytums

 

Hi

 

Just a thought and may be way off base but are you sure that the creditor is saying that they have not commenced procedings(38.7 does not apply) because the creditor is different, it may just be worth confirming what they mean by "not previousy issued claims against you".

 

Peter

[foolishgirl]

I think I will send a CPR31.14 requesting the full statements (to determine the balance), a copy of the NOA, proof of service of the NOA, and deed (good luck with this one though) I will also request a information about proof of service of the DN.

Cannot recall all the details of your case but be aware that you can only use CPR 31 after the case has been allocated if this is fast track ; you can only use CPR31 in small claims before you have submitted a defence & allocation has been made. Edited May 12, 2011 by foolishgirl

[pumpytums]

Hi Peter,

I think what they are saying is that the Creditor (OC) has not previously issued a claim which in essence is true. But the the relationship between the Claimant and the defendant is identical (providing the assignment was correct of course). In litigation the named Claimant can actually change for example lets say a Claimant dies their next of kin could continue in their place. As I have said the original Claimant should have issued a stay issued a DN then 14-21 days later recommenced. In discontinuing for a vague reason should pretty much close the door. If you asked me the only way the OC could issue a valid claim would be for a different account, a simple reinstated account does not cut it in my book.

 

In my case the Claimant issued a vexatious claim they are now saying because they messed up big time they should be allowed to have another go.

 

The Claimant if my English is correct is simply a title for a person or institution that believes something belongs to them or which they have a right to. As we know the right of ownership can be transferred.

 

For example I buy a car it has a design fault on it, I sue I discontinue. I sell the car to you it has a design flaw you attempt to sue CPR 38.7 kicks in it's the same car the claimant is the owner. Nothing has changed apart from the name on the claim form. The party is different NOT the claimant.In discontinuing they have agreed to end all legal proceedings.

 

 

Here is another example using cars again there is a design fault on my car I sue I win. I sell the car the new owner sues for exactly the same fault you would hope that this could not be allowed.

 

In the case I quoted a company sued a company they lost/discontinued the director of the company then sued in his name rather than a companies this was allowed because the claimants were technically different.

 

Pumpytums

[pumpytums]

Cannot recall all the details of your case but be aware that you can only use CPR 31 after the case has been allocated if this is fast track ; you can only use CPR31 in small claims before you have submitted a defence & allocation has been made.

 

 

No allocation has taken place, to be honest they will have to disclose document anyway as it's still trackless providing I get my CPR31.14 off it should still be ok.

 

No harm in trying anyway. At the end of the day it is for the Claimant to prove their case if they are unwilling to provide me with documents I'm unable to plead in my amended defence.

 

Pumpytums

[Guest]

Hi Peter,

I think what they are saying is that the Creditor (OC) has not previously issued a claim which in essence is true. But the the relationship between the Claimant and the defendant is identical (providing the assignment was correct of course). In litigation the named Claimant can actually change for example lets say a Claimant dies their next of kin could continue in their place. As I have said the original Claimant should have issued a stay issued a DN then 14-21 days later recommenced. In discontinuing for a vague reason should pretty much close the door. If you asked me the only way the OC could issue a valid claim would be for a different account, a simple reinstated account does not cut it in my book.

 

In my case the Claimant issued a vexatious claim they are now saying because they messed up big time they should be allowed to have another go.

 

The Claimant if my English is correct is simply a title for a person or institution that believes something belongs to them or which they have a right to. As we know the right of ownership can be transferred.

 

For example I buy a car it has a design fault on it, I sue I discontinue. I sell the car to you it has a design flaw you attempt to sue CPR 38.7 kicks in it's the same car the claimant is the owner. Nothing has changed apart from the name on the claim form. The party is different NOT the claimant.In discontinuing they have agreed to end all legal proceedings.

 

 

Here is another example using cars again there is a design fault on my car I sue I win. I sell the car the new owner sues for exactly the same fault you would hope that this could not be allowed.

 

In the case I quoted a company sued a company they lost/discontinued the director of the company then sued in his name rather than a companies this was allowed because the claimants were technically different.

 

Pumpytums

 

HI

Yes i agree with all the above, the agrement is the same in any case and it is the agrement that is being enforced.

 

I am just wondering why they would use such obvioulsly flawed logic

 

I think that you shoud be sure that this is what they are saying, and there is no other reason why they think they can continue.

 

Peter

[pumpytums]

HI

Yes i agree with all the above, the agrement is the same in any case and it is the agrement that is being enforced.

 

I am just wondering why they would use such obvioulsly flawed logic

 

I think that you shoud be sure that this is what they are saying, and there is no other reason why they think they can continue.

 

Peter

 

Hi Peter,

basically judging by the quality of the letter it's been no where near a solicitor it's still in keyboard monkey land. They issue, you do nothing then win which for 95% of the time works for them. I actually sent the letter weeks ago yet oddly it was only recently signed for which indicated they can't even be bothered to collect their mail. This in it's self I believe is an abuse of process, communication is the key and if the Claimant's representative can't be @rsed to get their post so be it.

 

Pumpytums

[The Mould]

Hello Pumpytums

 

In your case, the claimant would have standing before the court if he is the title owner or a named party on the contract and his cause of action would be a breach of contract by you, i.e. he serves a valid default notice upon you and you fail to remedy the breach as per the terms stated in the DN.

 

Kind regards

 

The Mould

[Guest]

Hi P

I really do hope you are right, but i stil think it is worth checking that this is the scenario they are following.

 

Dare i mention it there is another.

In their letter post 107 they say that they could not enforce because of the failure to issue a notice. This is true as our friend Mr Mould also says.

It may be, that they are saying that as a cosequence of this the hearing never legally took place, again acording to Mr Mould they had no cause for acction so how could it.

 

If this is indeed the case, then they would be correct in saying that no proceedings had been taken against you

 

May be absolute B88**ks but it may also be what is going through there minds.

Beter safe than sorry and easy enough to find out just ask.

Peter

[pumpytums]

Thanks Mould

 

Hi Peter,

I believe that issuing a claim is not classed as enforcement only obtaining a CCJ is classed as actual enforcement. So they were perfect allowed to issue a claim it was vexatious and flawed from the very beginning but basically they tried it on. They knew they had no right of action from the start yet they continued. You think about the number of claims that go through every day without the slightest resistance.

 

The thing that really gives you food for thought was that the Claimant actually asked the judge for summary judgement the judge basically told him to do one.

 

Pumpytums

[RoadToRecovery]

Subbing with interest. Good luck.

[The Mould]

Thanks Mould

 

Hi Peter,

I believe that issuing a claim is not classed as enforcement only obtaining a CCJ is classed as actual enforcement. So they were perfect allowed to issue a claim it was vexatious and flawed from the very beginning but basically they tried it on. They knew they had no right of action from the start yet they continued. You think about the number of claims that go through every day without the slightest resistance.

 

The thing that really gives you food for thought was that the Claimant actually asked the judge for summary judgement the judge basically told him to do one.

 

Pumpytums

 

Hello Pumpytums

 

Yes, you are correct, issuing a claim is not deemed enforcement, however, continuing or commencing with proceedings is attempting to enforce and such action cannot be attempted in dependence upon a defective (bad) statutory notice as per the ruling in Harrison.

 

Kind regards

 

The Mould

[pumpytums]

Hi everyone,

letter sent, I enclosed a CPR 31.14 request as well. They have 7 days to send me the agreement (complete including all reference documents), Notice of assignment, proof of service of same, proof of service of DN (I have never received the notice they recently supplied prior) and of course full statements to determine the balance claimed.

 

In my letter I basically said they were trying to avoid CPR 38.7 by claiming the party was different, if you could do this it would make a mockery of the courts. The Claimants standing before the court was identical in both cases as was the cause of action namely they both claim that the debtor (defendant) had breached the same agreement for the same reason.

 

I gave them a final chance to discontinue if they don't I'm going for a strike out N244 to be honest this should have been done before the Defence but I'm LIP at the end of the day. Providing it's done before allocation questionnaires are submitted it shouldn't be a problem. When the time is up on the CPR31.14 I'm going to call their solicitors asking for my info I will then file to strike out, depending on their answer.

 

So I could do with a little help in drafting my N244 first one I have ever done, do I take it to my local CC and file it their or do I have to post it to Northampton can I pay on the phone with a debit card etc?

 

Ok on to the N244

 

What order are you asking the court to make and why?

 

The Defendant requests the Claimants case is struck out as they have not acted in accordance with CPR 38.7.The Claimant has not sought the permission to issue a claim that was previously discontinued after a defence was filed and the claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim. The Defendant believe this claim is an abuse of process.

 

What information will you be relying on, in support of your application?

 

The Claimant claims their standing before the court is the same as a previously discontinued case (SCUMBAGDCA case number) this case was discontinued on DATE, the Defendant filed a defence on DATE. This claim (****** OC case number) arises out of facts that are the same as the previously discontinued case namely that the Defendant has failed to make payments on an agreement under the Consumer credit act the rights to which have been claimed to be absolutely assigned to the Claimant in both instances. The Claimant has not sought the permission of the court for this claim as required by CPR38.7. The Defendant believes this Claim is an abuse of process and should be struck out. The Defendant claims costs.

 

 

 

Comments please all, do you think it would be worth mentioning about the fact that I have never received a NOA or leave that out?

 

Should I add the following the Claimant (****** OC) has provided no evidence of any absolute assignment from ****** DCA. The Defendant has received no Notice of assignment or proof of service of same. The Defendant requested the NOA and proof of same in a registered letter DATED the Claimant failed to respond in the required 7 days from receipt. Thus the Defendant believes the Claimant has no right to raise this claim.

 

Thanks

 

Pumpytums

Edited May 18, 2011 by pumpytums

[foolishgirl]

Comments please all, do you think it would be worth mentioning about the fact that I have never received a NOA or leave that out?

 

Should I add the following the Claimant (****** OC) has provided no evidence of any absolute assignment from ****** DCA. The Defendant has received no Notice of assignment or proof of service of same. The Defendant requested the NOA and proof of same in a registered letter DATED the Claimant failed to respond in the required 7 days from receipt. Thus the Defendant believes the Claimant has no right to raise this claim.

 

IMO, leave the above out. Keep your app simple & in terms that can be easily comprehended; bring all the above in & you are opening the door to a debate over the merits of the case. If you don't get the strike out, this info can all be brought out later.

 

You need to send the N244 to Northampton as it has not been allocated but it may then be allocated to your local court to deal with the app. Not sure there is provision for applying online for this, you may need to post.

[pumpytums]

Hi FG,

thanks for the input.

 

I have just drafted a Letter before action for the OC. I believe if I was to counter claim I would need the permission of the court as I have filed a defence.

 

So I'm just going for a simple claim after 14 days of service I will be filing. I have had enough of these idiots.

 

The Claim will be fairly straight forward

 

The Claimant signed an agreement under the Consumer Credit act 1974 (agreement number)

 

The Defendant has breached the terms of our agreement (agreement number) the Claimant has suffered disbursements/costs as a result.

 

The Defendant as a data controler has failed to supply information with the prescribed 40 days under a request in writing under the Data Protection Act 1988 s7 the Claimant has suffered disbursement/costs and claims these under s13 of the same act.

 

The Defendant has failed to correct a incorrect entry on the Claimants credit reference file the Claimant has suffered disbursement/costs and damage to their credit worthiness, and claims compensation under s13 of the Data protection act 1988.

 

The Defendant has caused the Claimant to change their home telephone number due to repeat silent calls the Claimant has suffered disbursement/costs due to the number change.

 

The Claimant Claims £2XXX

 

I tried to steer clear of damages as its hard to prove time spent and supplies is very easy to prove

 

for starters.

 

 

Pumpytums

[Guest]

Thanks Mould

 

Hi Peter,

I believe that issuing a claim is not classed as enforcement only obtaining a CCJ is classed as actual enforcement. So they were perfect allowed to issue a claim it was vexatious and flawed from the very beginning but basically they tried it on. They knew they had no right of action from the start yet they continued. You think about the number of claims that go through every day without the slightest resistance.

 

The thing that really gives you food for thought was that the Claimant actually asked the judge for summary judgement the judge basically told him to do one.

 

Pumpytums

 

Since Mcguffic/ Ranking the definition of enforcement has been , all actions that follow compliant default notice.

This means that the default termination or any court proceedings to recover liabilities under the account would be considered enforcement, actually issuing the default is only considered as taking proceedings.

This is why a default termination cannot take place or any other form of enforcement if a default notice is not correctly served, yes as per Harrison , but more importantly as per statue,” not intitled to enforce”.

For the same reason they can re issue a default notice, they can also say that the agreement has not yet been enforced.

So your section 38 argument would not be vaid, unless you can show that enforcement commenced without a default , which it cannot.

Peter

[Guest]

Hello Pumpytums

 

Yes, you are correct, issuing a claim is not deemed enforcement, however, continuing or commencing with proceedings is attempting to enforce and such action cannot be attempted in dependence upon a defective (bad) statutory notice as per the ruling in Harrison.

 

Kind regards

 

The Mould

 

No

 

It has been well established that issuing a defautl notice is certainly not attempting not enforce, whatever that means.

 

Demanding early repaument of the loan is not prohibited without a default notice just the enforcement of that demand.

 

I would have thought by now people would have gotten this missconception out of their heads, this is the whole reason the now abbandoned "accepeting the termination" argument was never a goer.

 

Peter

[The Mould]

No

 

It has been well established that issuing a defautl notice is certainly not attempting not enforce, whatever that means.

 

Demanding early repaument of the loan is not prohibited without a default notice just the enforcement of that demand.

 

I would have thought by now people would have gotten this missconception out of their heads, this is the whole reason the now abbandoned "accepeting the termination" argument was never a goer.

 

Peter

 

Peter

 

I have not said that issuing a default notice is attempting to enforce.

 

Kind regards

 

The Mould

[pumpytums]

Sorry Peter I don't understand that,

the point I'm trying to make is that I was taken to court the claim was discontinued the case was ill founded. You could argue that in the first case the Claimant had no standing before the court but they proceeded thus they claimed they had standing, the second case is the same so in my opinion CPR 38.7 apply's.

 

They could say well we couldn't actually enforce in the first case, but we can now. Which is true the problem is they had their attempt so to speak, a judge may say carry on but they still need the permission. They didn't ask for permission so their claim is an abuse of process. I hope you see my point. In the first case they never mentioned that they discontinued because the case was ill founded or that a DN hadn't been issued. They simply discontinued for "economic viability" how do I know they didn't actually issue a DN and they simply didn't record it and then lost it. In the first POC they clearly stated

 

"The Defendant has failed to make payment as required by the agreement and/or associated agreements and to comply with a default notice or notices served by the Claimant and/or Assignor."

 

The thing you need to realise is that they never amended their POC, so they have stated a DN was served. If they had maybe requested a stay and then issued a DN and then amended their POC that would be a different thing but they didn't.

 

I would love them to stand before a judge and basically the first case was ill founded and we had not followed the rules and also broken the terms of our agreement with the Defendant but we no believe that we have now followed the rules and the terms of our agreement. To which I say thank you very much I now request the courts permission to issue a counter-claim against the Claimant. On what grounds, that the Claimant broke the terms of our agreement and caused the Defendant Financial loss and disbursement. I also wish to claim for damage to my credit file as the Claimant has now entered 2 derogatory entries for the same account.

 

If they want to carry on so be it they may win, but I will win my counter-claim I can prove they have broken their agreement and that I have suffered loss as a result. The Credit damage thing is a little harder but there is case law.

 

 

Pumpytums

Edited May 20, 2011 by pumpytums