Legal Action: how to start off. IMPORTANT IF YOURE BEING SUED

[basa48]

 

IMO you would be wasting everyones times seeking to obtain judgement by default t because you or the court were served a few days late

 

the court may well argue that it is not for you to decide if the court has been inconvenienced

 

It is now three weeks late, not a few days. This will be the second time they have failed to file a defence on time and this time it was by a date ordered by a judge not just court protocols.

[diddydicky]

then i would imagine (IMO) that the court will look at whether you have been prejudiced by the late service

 

if you are claiming that you do not have enough time prior to trial to digest and respond to what is in the papers then the court will probably grant you an adjournment to give you that time- rather than seek to give you judgement by default

 

i am afraid that the creditor would have to P*ss the judge off a lot more than one or two late submissions- before he would give you a default judgement- thats just the way things are

 

courts give a lot more lattitude to sols and creditors due to their heavy workloads- than they would a LIP

[means2anend]

they need only send the agreement between you and the OC together with proof that the debt has legally been assigned to them

 

the assignment (if valid) merely substitutes them for the OC

 

clearly you cannot expect them to produce that which does not exist ( a signed agreement between you and the assignee)

 

 

My colleague has passed me a Cabot letter in relation to Egg in which they state they have Legal Assignment and then state that because of this they inherited the rights and interest....that they have ''purchased the loan'

 

I reminded them that in addition to rights and interests that because it is a Legal Assignment that they also take the 'burdens and duties'

 

Also DD is this is all academic UNLESS there is a POWER to assign in the original agreement between the Original Lender/Creditor and debtor by the lender to a third party/assignee in the first place.And ONLY IF that POWER exists can THEN the question of s136 LPA 1925 can be properly considered

 

 

m2ae

Edited June 13, 2010 by means2anend

[basa48]

then i would imagine (IMO) that the court will look at whether you have been prejudiced by the late service

 

if you are claiming that you do not have enough time prior to trial to digest and respond to what is in the papers then the court will probably grant you an adjournment to give you that time- rather than seek to give you judgement by default

 

i am afraid that the creditor would have to P*ss the judge off a lot more than one or two late submissions- before he would give you a default judgement- thats just the way things are

 

courts give a lot more lattitude to sols and creditors due to their heavy workloads- than they would a LIP

 

Hmmmm, seems the defendants when a finance company can do literally anything then and get away with it.

 

So far the defendant has:

 

1. Failed to acknowledge original claim
   
2. Failed to file defence to original claim
   
3. Missed a set aside hearing
   
4. Failed to file defence after judges order
   

 

I may as well withdraw.

[diddydicky]

My colleague has passed me a Cabot letter in relation to Egg in which they state they have Legal Assignment and then state that because of this they inherited the rights and interest....that they have ''purchased the loan'

 

I reminded them that in addition to rights and interests that because it is a Legal Assignment that they also take the 'burdens and duties'

 

Also DD is this is all academic UNLESS there is a POWER to assign in the original agreement between the Original Lender/Creditor and debtor by the lender to a third party/assignee in the first place.And ONLY IF that POWER exists can THEN the question of s136 LPA 1925 can be properly considered

 

 

m2ae

 

i take it you mean a "power" contained within the T & C's of the agreement?

 

the short answer is i dont know- as i am under the impression that irrespective of the T & C's of the agreement (unless they specifically forbid the sale or assignment of the loan)- that as an asset belonging to the OC- the law in general allows them to sell trade secure upon it etc etc without encumbrance

 

but you might need to confirm that

[diddydicky]

Hmmmm, seems the defendants when a finance company can do literally anything then and get away with it.

 

So far the defendant has:

 

1. Failed to acknowledge original claim
   
2. Failed to file defence to original claim
   
3. Missed a set aside hearing
   
4. Failed to file defence after judges order
   

 

I may as well withdraw.

 

sorry basa i have not followed in detail- if you have filed a claim against anyone (financier included) and they have failed to file a defence at all (not even a holding defence) then of course you can apply for SJ

 

the danger is of course that they then immediately apply for a set aside for some spurious reason so then it is best to allow them enough rope - via applications to the court- to hang themselves - before you apply for the SJ

[gh2008]

the short answer is i dont know- as i am under the impression that irrespective of the T & C's of the agreement (unless they specifically forbid the sale or assignment of the loan)- that as an asset belonging to the OC- the law in general allows them to sell trade secure upon it etc etc without encumbrance

 

Totally agree DD - in the eyes of the law it is 'just another asset'.

[gh2008]

sorry basa i have not followed in detail- if you have filed a claim against anyone (financier included) and they have failed to file a defence at all (not even a holding defence) then of course you can apply for SJ

 

the danger is of course that they then immediately apply for a set aside for some spurious reason so then it is best to allow them enough rope - via applications to the court- to hang themselves - before you apply for the SJ

 

As they have already had a set-aside for a Default Judgement, I agree with DD that maybe applying for Summary Judgement would be the way forward.

 

A Summary Judgement is 'more formal' than default - there will be a hearing to which the defendants will be invited - you have to submit paperwork etc.

Will cost you £70 which you will get back with your time etc if you win.

 

Apply using N244

[means2anend]

i take it you mean a "power" contained within the T & C's of the agreement?

 

the short answer is i dont know- as i am under the impression that irrespective of the T & C's of the agreement (unless they specifically forbid the sale or assignment of the loan)- that as an asset belonging to the OC- the law in general allows them to sell trade secure upon it etc etc without encumbrance

 

but you might need to confirm that

 

 

It appears they cannot!

 

Contracts (Rights of Third Parties) Act 1999 (c.31) - Statute Law Database

 

 

 

1. Right of third party to enforce contractual term.

 

— (1) Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

(a)the contract expressly provides that he may, or

(b)subject to subsection (2), the term purports to confer a benefit on him.

 

(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

 

(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

 

(4) This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.

 

(5) For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).

 

(6) Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation.

 

(7) In this Act, in relation to a term of a contract which is enforceable by a third party—

“the promisor” means the party to the contract against whom the term is enforceable by the third party, and

“the promisee” means the party to the contract by whom the term is enforceable against the promisor.

[gh2008]

If a debt has been lawfully assigned, the contract itself is also assigned (as to whether that actually happens is another thing)

 

Once that has happened the new owner is not a 3rd party, they simple replace the OC in the original contract. i.e. the contract is then between you & them not the OC.

 

This is the whole issue surrounding whether the debt/receivables/rights get assigned or the whole contract...

[basa48]

As they have already had a set-aside for a Default Judgement, I agree with DD that maybe applying for Summary Judgement would be the way forward.

 

A Summary Judgement is 'more formal' than default - there will be a hearing to which the defendants will be invited - you have to submit paperwork etc.

Will cost you £70 which you will get back with your time etc if you win.

 

Apply using N244

 

Hmmmm

 

CPR 24.4

 

(1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed –

 

(a) an acknowledgement of service; or

 

(b) a defence,

[diddydicky]

i think it was assumed that an acknowledgement was done- but that's an interesting scenario

 

 

it would be judgement in default if no service was acknowledged- but i think in this case it must have been since the court had already issued instructions that the defendant had not complied with

[diddydicky]

It appears they cannot!

 

Contracts (Rights of Third Parties) Act 1999 (c.31) - Statute Law Database

 

 

 

1. Right of third party to enforce contractual term.

 

— (1) Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

(a)the contract expressly provides that he may, or

(b)subject to subsection (2), the term purports to confer a benefit on him.

 

(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

 

(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

 

(4) This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.

 

(5) For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).

 

(6) Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation.

 

(7) In this Act, in relation to a term of a contract which is enforceable by a third party—

“the promisor” means the party to the contract against whom the term is enforceable by the third party, and

“the promisee” means the party to the contract by whom the term is enforceable against the promisor.

 

as GH has said , tyhis relates to third parties acting - not to a third party who has bought the debt (so then becomes the first party)

[basa48]

i think it was assumed that an acknowledgement was done- but that's an interesting scenario

 

 

it would be judgement in default if no service was acknowledged- but i think in this case it must have been since the court had already issued instructions that the defendant had not complied with

 

The court (and me) has yet to see any acknowledgement or defence. The defendant applied for (and obtained) a set aside after I obtained the first default judgement. The only witness statements received were in their application for the set aside and were concerned with why they did not acknowledge or defend, but did include a broad outline of their defence strategy. Would that count?

 

The current order of the court for the defendant to submit a full defence (still not filed 3 weeks late) were as a result of the set aside hearing.

[diddydicky]

then you now need an unless order (IMO)

 

i would make a witness statement in support of the unless order and suggest that the defendant has abused the court in seeking the set aside when it would appear that they have no intention of defending the action

[basa48]

then you now need an unless order (IMO)

 

i would make a witness statement in support of the unless order and suggest that the defendant has abused the court in seeking the set aside when it would appear that they have no intention of defending the action

 

I really don't see the point of that - it just gives the defendant yet another chance to remedy their ongoing abuse of process.

 

I'd be better off requesting default judgement which will force them to pay again for a set aside. Plus I would imagine the judge hearing the set aside app. would be far from impressed by their current performance.

[diddydicky]

i see your logic- but judges don't always see it the same

 

 

however you have the benefit of differing advice - now it's your call

[basa48]

i see your logic- but judges don't always see it the same

 

 

however you have the benefit of differing advice - now it's your call

 

Don't I know it, IMO the defendants case is as weak as they get yet they still got the set aside. I fully expect them to get another, but there is always the hope that another judge will see sense.

 

I will weigh up the advice for which I thank all who commented.

 

At least this is all good practice. I've been in court 4 times now!

[gh2008]

you *could* write to the Court. The DJ will reject your letter, but they normally give subtle guidance as to how they would like you to proceed.

 

just another possible track

[gh2008]

Don't I know it, IMO the defendants case is as weak as they get yet they still got the set aside. I fully expect them to get another,

 

What were the grounds? not receiving? if so they can hardly plead that again...

If their grounds were that they had a defence then it's a bit of a pain sorry

[basa48]

What were the grounds? not receiving? if so they can hardly plead that again...

If their grounds were that they had a defence then it's a bit of a pain sorry

 

Usual grounds - "the claimant had the benefit of the credit, they must have signed or we wouldn't have given a card" type of cr*p!

 

Grounds for not acknowledging/defending - "the secretary filed the papers in the 'completed' drawer"!!!

[Jeff2000]

Hi,

 

 

Sorry to change the subject but I have a quick question.

 

Which section of which act is it that forbids a creditor from claiming statutory interest on a CCA claim?

 

I am about to write a letter to a DCA this morning.

 

Thanks if you can help.

 

 

Regards, Jeff.

[foolishgirl]

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a)

 

 

[Jeff2000]

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a)

 

 

 

 

Many thanks fg.

 

I shall jog their memories of this small detail.

 

 

Jeff.

[bustthematrix]

Maybe I'm missing something but is a SARN request to the OC and or DCA not supposed to reveal exactly what's been done with or to your account?

 

We shouldn't let them hide behind smoke and mirrors and confuse things by not disclosing excatly who the creditor is and what exactly the relationship is in regard to anyone actually contacting you.

 

It is their standing in the matter that informs how you deal with them in the first place. If one is confused in that regard then they can play games with you!!!