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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

 

I can certainly show they attempted enforcement without issuing a DN as I have the logs and they have stated that one was not issued.

 

The Claimant issued a claim because they obviously believed the OC had issued a DN they chose to dismiss my registered letter as a bluff. The point is you would have though they would have asked the OC if one had been issued wouldn't you? They were so sure one had been issued they they even DEFAULTED my CRF. I know the two are not directly linked but the date they put on the default marker was after they purchased it. I asked for the DN in my CPR 31.14, I asked for it in my AQ. I even asked for it in the hearing, at which point it ceased to exist.

 

So one could surmise that the OC told Link that yes a DN had been issued, thus Link happily trotted off to Northampton. I have actually spoken to Link on this matter and they did state that the OC supplied the info about the DN. I wonder if it would be worth calling them as a witness?

 

I think I see your point about enforcement, in the first instance they had no right to enforce in the second they do (maybe).

 

But in the first instance they claimed they had a right to enforce and that's the important bit.

 

Have a read of Sinks AQ

 

"The claim is raised to enforce the financial terms and conditions of a regulated

credit card agreement between OC and Pumpytums, the benefit of which has been legally assigned to the Claimant.

The claim is defended on the basis of the Defendant disputing the full outstanding

balance and requesting strict proof of the agreement, terms and conditions and

statements issued .

The Claimant believes the defence to be invalid as the Defendant has been supplied

with a copy of the agreement along with the relevant terms and conditions along

with a statement of account from the original finance provider. Statements would

have been issued every month by the original provider . A copy of the Letter of

Assignment previously issued to the Defendant has also been provided clearly

notifying the Defendant of the assignation to the Claimant .

As such, we request the defence be struck out and Judgment entered for those sums

claimed ."

 

I forgot about this notice the word enforce. :) How odd they forgot to mention I had asked for the DN, without which they had no right to enforce.

 

 

Pumpytums

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HI

Firstly to point out (unnecessarily I would hope)that I am playing devil’s advocate to an extent here ( because I think someone should).

I would remind everyone that there is nothing legally sanctionable about what a creditor or anyone else intends to do, a creditor can demand early payment any time he wants, it is up to the court to decide if they can enforce, the fact the creditor / dca intended to enforce is irrelevant they could not enforce simple as that.

Basically i cannot see the difference between this scenario and one of just re issuing a default notice. The only question is if the creditor needs to apply for permission to re continue or not.

They are obviously saying they do not. I think they are saying this because they do not think that the original hearing was valid, in that it was not pursued by the “creditor”/ had no authorisation, cause of action, default notice, whatever you want to call it.

Peter

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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

 

Continuing or comencing proceedings is not enforcement.

 

Peter

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HI

Firstly to point out (unnecessarily I would hope)that I am playing devil’s advocate to an extent here ( because I think someone should).

I would remind everyone that there is nothing legally sanctionable about what a creditor or anyone else intends to do, a creditor can demand early payment any time he wants, it is up to the court to decide if they can enforce, the fact the creditor / dca intended to enforce is irrelevant they could not enforce simple as that.

Basically i cannot see the difference between this scenario and one of just re issuing a default notice. The only question is if the creditor needs to apply for permission to re continue or not.

They are obviously saying they do not. I think they are saying this because they do not think that the original hearing was valid, in that it was not pursued by the “creditor”/ had no authorisation, cause of action, default notice, whatever you want to call it.

Peter

 

 

Thanks Peter

 

 

Pumpytums

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pumpytums

 

If you have filed a defence (as set out in VJ's post at #149), I would wait to see what the OC's solicitors do next. They have 28 days after tyou have filed to respond. Submitting an applicatin for strike out at this stage may be premature.

 

Once you know where they are going with the claim, you can respond accordingly by submitting a witness statement exhibiting all the documents showing the parties inovlved in the discontinuence.

 

As to the point about CPR 38, the wording is

 

"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."

 

I can see have an unqualified twit can say this doesn't apply becasue we are not the same claimant but the intent of the section (especially 38.7 (b) is clear. The discontinuence relates to the CLAIM. If that has been discontinued, then IMO court permission is required otherwise as you observe, there could be a merry go round of discontinuance followed by assignment to another party and then a new claim.

 

 

Doc

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Hi

Simple enough scenario.

Looking at this logically.

The DCA believing that they had the right to enforce commences enforcement.

The debtor points out that the DCA has no right to enforce.(No notice)

Question.

Does this deny the creditor the right to enforce?

Answers on a postcard please

Peter

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Hi doc,

thanks for the input it's much appreciated, I will wait for their next move before I send my N244 in.

 

The comments I have received from the Claimants rep are basically sheer daftness both verbal and written. You can always tell the level when no one is prepared to put their name to a letter.

 

thanks again

 

Pumpytums

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Ok the AQ has arrived so it's time to file my N244, I'm almost 100% sure this must me done before allocation takes place for abuse of process.

 

Am I right in thinking it's 3 copies and it costs £75?

 

OK onwards and upwards

 

Q3

 

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 discontnued 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 believes this claim is an abuse of process.

 

Q4 Draft order attached YES

 

Q5 How do you want to have this application dealt with? AT A HEARING

 

Q6 How long do you think the hearing will last? LEFT BLANK

 

Q7 BLANK

 

Q8 What level of Judge does your hearing need? DISTRICT JUDGE

 

Q9 Who should be served with this application? CLAIMANT

 

Q10 the evidence set out in the box below

 

The Claimant claims their standing before the court is the same as that of a Claimant in a previously discontinued case "**** DCA vs Pumpytums (Claim No BLAH )" this case was discontinued on DATE, the Defendant filed a defence on DATE. The rights to the same agreement have been claimed to be absolutely assigned in both cases. LEAVE THIS OUT ??.

The claimed facts in both cases are :-

 

"The Claimant claims the full balance due under an agreement (ref BLAH) in writing regulated by the the Consumer Credit Act 1974. The Defendant has failed to make payments required under the agreement and has failed comply with a default notice served by the Claimant."e

 

The Claimant has not sought the permission of the court for this claim as required by CPR 38.7. The Defendant believes this Claim is an abuse of process and the claim should be struck out.

 

Any comments or corrections will be appreciated this is my first N244 I will be filing it Saturday morning by post.

 

Should I mention the Claimant believes they can avoid CPR 38.7 by assigning the debt to a different Party?

 

Thanks

 

Pumpytums

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Hi Pumpytums, apologies for getting on here too late. Your request seems reasonable enough given their breaches and conduct...just have to hope the judge agrees these are sufficient grounds and approves your request. Keep us posted.

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Hi,

certainly worth the £75. The civil law book I have says all orders regarding abuse of process should be done before the defence or allocation.

 

Check you PM mate.

 

Pumpytums

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What do you do if a company acting in the capacity of a solicitor is trying to mislead the court by the fabrication of evidence for the Claimant?

 

Is this considered to be fraud could the solicitor be struck off?

 

Pumpytums

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HI

 

Yes but reportt it to the court first it is contempt. The SRA code of practice is available on line just google it.

 

Peter

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What do you do if a company acting in the capacity of a solicitor is trying to mislead the court by the fabrication of evidence for the Claimant?

 

Is this considered to be fraud could the solicitor be struck off?

 

Pumpytums

 

Good evening pumpytums

 

See CPR Part 32 Evidence

 

Make sure that you have tangible evidence to support any allegation you make in respect of fabrication.

 

Kind regards

 

The Mould

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I think before crying fraud etc. I will get the Claimant to prove their documents, that should put the wind up them. I'm also sending a new shiny SAR to the Claimant.

 

Apparently as per CPR 32.19 if you receive a document that is disclosed to you and you say nothing, you are basically admitting it's authenticity. That's a new one on me. So by filing a N268 and listing the documents you wish to query the Claimant then has to prove them at trial.

 

Then if they refer to a document as being 100% authentic, that isn't in their witness statement then the following applys :-

 

False statements

32.14

(1)Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

(Part 22 makes provision for a statement of truth)

 

(2)Proceedings under this rule may be brought only –

 

(a)by the Attorney General; or

 

(b)with the permission of the court.

 

Then things could get very messy for the person making the witness statement I believe contempt of court is pretty serious.

They may fall back on the their special friend of hearsay evidence "I saw a document that is shown to me and is labelled as the recipe for cold fusion"

 

The phrase " Honest belief in it's truth" is a little open though isn't it.

 

Lets have some fun.

 

If in doubt speak up.

 

Pumpytums

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Hi

 

I am being a bit nosey but what have they done? I must have missed it but have they manufactured a new agreement or something???

 

I take it some docs have changed???

 

Cups

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I think I will send a N268 to the court and the Claimant this means they have to prove the documents at trial.

 

Note, not applicable if this is allocated to small claims

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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N268 is interesting. Surely the only way any document can be proved as real (assuming it's an alleged copy and the original is missing/destroyed) is to produce a detailed history of the document retention policy employed by the creditor. Who destroyed the original, why, when...who made the alleged copy, when etc?.

 

Without that info to 'prove' what is presented is indeed a genuine document (albeit a supposed copy) how can a claimant beat the N268 with a photocopy and no records of how that copy came about?

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Proof of documents

 

Best evidence rule

 

There is a very old common law rule that the contents of a document must be proved by primary evidence. The rule is often said to be an aspect of the best evidence rule. The best primary evidence of a document is the original, although it has been held in Slaterie v Pooley (1840) 6 M & W 664 that an informal admission is primary evidence of the contents of a document against the party making the admission. Thus, under the general rule, a party suing for damages for breach of a covenant for quiet enjoyment will have to prove the covenant by reference to the original lease.

Secondary evidence of a document

 

There are a number of exceptions to the general rule:

  • Where the original has been lost and has been found after due search.
  • Where it is impossible to produce the original, such as the inscription on a foundation stone;
  • Where production is legally prohibited;
  • Public documents;
  • Documents covered by the Bankers’ Books Evidence Act 1879.

When secondary evidence can be given, the contents of the document can be proved by copies of the original, whether these be manuscript copies, or photocopies or some other method, including copies of copies. The only condition is that the witness producing the copies must be able to say that the copies are true copies.

Other side having the original

 

In this situation the old rules allowed a notice to produce the document at trial to be served on the other side. The notice did not compel production, although noncompliance may be grounds for drawing adverse inferences. However, the primary purpose behind the procedure was that it laid the ground for allowing secondary evidence. Secondary evidence was admissible where

  • There was evidence of due service of the notice to produce; and
  • There was evidence that the original was in the possession of a party served with notice to produce; and
  • The party served had not produced the original.

It was held that once secondary evidence had been adduced, the original could not be adduced to contradict the secondary evidence.

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I agree with regards to N268 and small claims but the point is that if I don't make such an application do I then take the documents supplied to me under the CPR31.14 as being ok?

 

If I don't think they are ok why should I leave such fears until I write my witness statement/amended defence? A judge could say well Mr Pumpytums if only you had made an N268 application.

 

If you read CPR 32 it's quite scary

 

Evidence in proceedings other than at trial

32.6

(1)Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.

 

(2)At hearings other than the trial, a party may, rely on the matters set out in –

 

(a)his statement of case; or

 

(b)his application notice, if the statement of case or application notice is verified by a statement of truth.

 

Notice to admit or produce documents

32.19

(1)A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

 

(2)A notice to prove a document must be served –

 

(a)by the latest date for serving witness statements; or

 

(b)within 7 days of disclosure of the document, whichever is later.

 

So If I don't say anything am I not admitting it's authenticity?

 

Pumpytums

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By the way I'm not trying to be "clever" with these applications or explore new avenues. I have an honest belief in certain 100% solid facts. If the Claimant wishes to dispute these in their witness statement so be it. If any party acting for the Claimant wishes to fit evidence to suit their case feel free, but I require they prove it at trial. Which I believe is my right, to hopefully get a fair hearing. I believe this has gone far beyond you owe X to Y we are entering the realms of contempt.

 

Pumpytums

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Hi

 

I used the above and got nowhere with it last year. It is a very simple form but the DJ ignored it!!

 

I had proof that the agreement supplied to me was not mine, it had been faxed to a DCA four years prior to any time l had ever even applied for a credit card but that was ignored. The DCA didn't even have to explain to the court the date issue it was ignored! Courts don't like allegations being made so please be warned, only you know the issue at hand so good luck and fingers crossed!!

 

Cups

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Hi Cups,

sorry to hear that I had a quick read on your thread. Old crapbot seem to make stuff up as they go along unfortunately some judges seem to accept it.

 

Thanks for the heads up, I won't be making any allegations unless I can back them up with hard facts and proof. Hopefully it won't come to that anyway.

 

Forewarned is forearmed.

 

Thanks again cups.

 

Pumpytums

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