Freds/Carter claimform - Monument Card 'debt' ***Claim Struck Out****

[foolishgirl]

So Arrow Global (US) hold a UK Credit Licence

 

Yes, but the Claimant's address should be stated as the London registered office, not the one in the US.

 

How does BC keep managing to make so many elementary errors?!

[gh2008]

we shouldn't complain .....

 

[Upsetandfrustrated]

Right off the court for this now, I will let you know how I got on later.

 

Hopefully the judge will just strike it out. BCC wrote to me last week telling me they were not turning up.

 

So here goe's!

[Bazooka Boo]

Good luck, although I don't think you'll need it!

[Upsetandfrustrated]

Just back, it was horrible. The judge decided to give them 28 days to produce a copy of the executed agreement for Barclays Bank PLC. I have not got a clue why she said that rather than Arrow or even Monument. She also told them to comply with the SAR fully to include all details of the account, handling, manual interventions and charges.

 

Fail to do the above and it will be struck out. I asked about costs for my time in that case and she told me that I cannot have it both ways.

 

If they do comply, I have 28 days to do a new defence.

 

I pointed out that what they called the executed document was in fact an application form, but the judge did not know the difference! To be honest I expect them to put out the same forms, get a hearing and win.

 

To be to the point.They have not complied with my CCA, or SAR, they were told they were in default. They have not provided an assignment proof or other documents, but appear to be getting a lot more head room than I would in a court.

[Bazooka Boo]

How far out of time are they in regards to the SAR? If past the 40 day point, have you sent them a LBA giving them another 14 days grace? Have you reported them to the ICO to investigate?

 

You've got another 28 days, it is unlikely you will get the same DJ the second time round, whilst this is not really my forte, I fail to see why you cannot ask for costs to be taken into account regarding your time and stationary etc, there is a schedule somewhere of costs laid down which you can ask for, but no idea where it is.

 

This will bump you back to the top of the pile anyway.

[Upsetandfrustrated]

They have had since November 2007 to comply with my CCA and SAR. The alleged agreement dates back to Feb 04.

 

What I cannot understand is why the stile out order did not stand? They had 7 months to comply.

[Guest]

unfortunately, it seems that it is not uncommon for creds to be given 'extra time' to do things that they should have already done! at least it is now the subject of a court order, and if they don't comply then strike. unfort, it sometimes takes a court order for these planks to comply (or not) with certain things.

no point doing an LBA at this point re sar non compliance, as they are now already subject to a court order to comply.

imo.

Edited January 25, 2011 by Ford
typ

[Bazooka Boo]

Yes agreed, although this MUST form part of your defence, in that they have failed to comply not only to your CCA request, but also that they are in breach of the DSAR of which you will be forwarding a complaint to the ICO for them to investigate and, hopefully, fine them for not doing so!.

[foolishgirl]

Not a really unexpected result, just bide your time & wait for docs or no docs as the case may be but make sure you have that request for the SO to be implemented on the day they fail to meet the court order.

 

Fail to do the above and it will be struck out. I asked about costs for my time in that case and she told me that I cannot have it both ways.

 

You are entitled to costs but don't worry, you can submit retrospectively if you get the SO.

 

BTW if you do have to defend, apart from any bias that may be exhibited towards creditors, don't expect the DJ to know or understand the implications of the CCA & its regs. You have to be prepared to 'educate' them so it is vital that you understand all the arguments relating to the CCA & can put them over concisely & competently. You wouldn't expect a GP to be able to perform heart surgery so don't expect any more of a DJ - many of them are only ex or jobbing solicitors or similar.

[gh2008]

what was this hearing? If it was your SO app then it sounds as though the DJ is almost on your side

 

You won't get costs until the outcome - if it is struck out then you win big time and get costs.

 

It sounds as though you have had the normal sort of SO app result - the Claimant gets a kick up the backside and told to get their house in order.

 

If they do not sort it out then it gets Struck Out, if they DO sort it out then you will find it much more straightforward to rip their POC to shreds

[Upsetandfrustrated]

Thanks for the replies everyone. I actually believed the DJ was giving them more time, but looking at it, yes, it's a kick up the backside. I do short-hand and wrote everything down. In their statement they pointed out the application form as the signed terms and conditions. My husband pointed it to the court that it was an application and that they were trying to mislead the court by saying and was the excited credit agreement. The DJ said "yes, I noticed that myself, it's only the application card". I think that's statement was positive. The other thing, the order is for a signed and exicuted document from Barclays Bank. The "alleged" agreement would have been with monument. I have a blank copy of the one they sent in 2004 and no where does it mention Barclays. Does that make a difference? The DJ asked to see all the CCA's, SAR's, failure and breech notices going back to 2005 and made a note.

 

One last item and I don't know if it is relevant. The last payment I made was on the 19th Feb 2005.

[foolishgirl]

The DJ said "yes, I noticed that myself, it's only the application card". I think that's statement was positive. The other thing, the order is for a signed and exicuted document from Barclays Bank. The "alleged" agreement would have been with monument. I have a blank copy of the one they sent in 2004 and no where does it mention Barclays. Does that make a difference? The DJ asked to see all the CCA's, SARs, failure and breech notices going back to 2005 and made a note.

 

It all sounds very positive to me, UAF.

 

You had a DJ who agreed with you on the applic. form not being an executed agreement & she has ordered them to provide all docs back to 2005. Could it be that when she ordered Barclays to produce a copy, she was aware that Monument no longer exist & that it would be down to Barclays' records, not that she expected a Barclay doc?

 

Just be patient & have that request to get it struck out ready to go on the date they fall foul.

 

I assume you were hoping to call out of time when referring to your last payment in Feb 2005? If so, you can't - The Limitation Act only applies after 6 years & action was obviously commenced within that time.

[gh2008]

Just be patient & have that request to get it struck out ready to go on the date they fall foul.

 

I wholeheartedly agree I cannot emphasise the importance of this enough, get it done NOW so that if required it can go in straight away.

 

good luck

 

The reason you may have felt as though you lost, is that it was your application and therefore you have to prove it. These applications really wake the claimants up and will give you a very good idea of how the case is going to turn out.

You either go in and lose big time - in which case that £75 just bought you a serious wake up call

OR you go in and pretty much do what you have done, you get the DJ on your side to rip into the Claimant and tell then to get their house in order or drop it.

The possibility of a SO resulting in a SO 1st time is remote

 

but these apps put you in the driving seat and allow you to use everything at your disposal to steer the claim into being about facts rather than getting to trial and having a clever persuasive Counsel bamboozal the DJ with 'would be' 'could be' 'should be'

 

jmho though

[Upsetandfrustrated]

I have received the order this morning and it says:

 

1. The claimants shall, by 4pm on the 21st February, file and serve a copy of the Consumer Credit Agreement between Barclays Bank PLC and the defendant, together with a full record of all charges levied, credits and debits on the account referred to in the statement of XXXXXXXX.

 

2. In default, the claim is stuck out

 

3. upon the claimant complying with paragraph 1 above the defendant shall by 4pm on XXXX (28 days) file and serve a fully particularised defence to the claimant.

 

4. Costs in the case.

 

 

I don't really understand the first part. OK they have to produce the documents, but it is for someone other than on the POC. I cannot see them having it, otherwise they would have produced what they claim they have.

 

Can anyone help me in case they default and I can put in a SO, or do I? If they don't comply with 1, doe's it not get struck out automatically?

 

Any help is aprecietated.

 

Thanks again.

[vjohn82]

If they fail to comply it will be struck out on the order of the court.

 

This is a good court order IMHO... if they do not have the proper agreement then they are screwed ;-)

[gh2008]

That is a seriously good Order - well done to you AND to the DJ

[foolishgirl]

That is a seriously good Order - well done to you AND to the DJ

 

I agree, excellent news UAF.

 

Of course they won't be able to supply an agreement with Barclays name on it - it doesn't exist! And it they try any 'reconstruction' on a Barclays generic form, you can shoot it down in flames immediately can't you?

 

All you need to do on the 29th day is to ask the court if anything has been received from the Claimant in respect of the order & if not, ask that the case is put before a DJ for SO asap. They may want a formal request in writing from you but you shouldn't need an app. Just communicate with the court.

[Upsetandfrustrated]

foolishgirl,

 

Thank you, that was the advice I was looking for. 21st at 4.01pm it is!!!!

[gh2008]

tick, tock, tick, tock .......

[Upsetandfrustrated]

Well, opened the post this morning. Copies of the statements, and the reply card with a letter saying please find all account transactions and a copy of your credit agreement.

 

Guess they lose?

 

How do I go about costs? I estimate 18 1/2 hours, plus 1 appearance for another 2 hours.

[foolishgirl]

You will first have to contact the court & ask them to strike this claim out as per the order. I suggest you phone them tomorrow & ask if they will do it automatically or if they require a letter or formal application from you.

 

Then you can submit your costs as a wasted costs order. The template is in the CAG library but you will need to amend: http://www.consumeractiongroup.co.uk/forum/content.php?581-Wasted-Costs-order

[gh2008]

I have received the order this morning and it says:

 

1. The claimants shall, by 4pm on the 21st February, file and serve a copy of the Consumer Credit Agreement between Barclays Bank PLC and the defendant, together with a full record of all charges levied, credits and debits on the account referred to in the statement of XXXXXXXX.

 

2. In default, the claim is stuck out

 

3. upon the claimant complying with paragraph 1 above the defendant shall by 4pm on XXXX (28 days) file and serve a fully particularised defence to the claimant.

 

4. Costs in the case.

 

 

Ok, so that was what hey were supposed to produce.

 

Well, opened the post this morning. Copies of the statements, and the reply card with a letter saying please find all account transactions and a copy of your credit agreement.

 

Guess they lose?

 

How do I go about costs? I estimate 18 1/2 hours, plus 1 appearance for another 2 hours.

 

Have they produced *any* credit agreement at all?

If not then, yes, write in on the 22nd and ask for the claim to be struck out.

 

If they have produced *an* agreement but that agreement is not the one required by the Order or is otherwise duff, you will need to write in and explain that, although it *may* not be struck out if there is an agreement of some sort.

 

IF, it is accepted and then I would make a further application for the Claimant to submit a fully particularised POC - without that you cannot defend as you will allow yourself to be drawn into no-man's land at any hearing.

 

As the POC still stand there is still no agreement nor was there ever between you and the Claimant.

You still have a letter confirming that AG are not the creditor

So they have to PROVE they have a right of action through a proper POC, not a Carter special designed to allow them to make it all up on the day (as I think may have happened at teh SO application hearing ....)

[gh2008]

You will first have to contact the court & ask them to strike this claim out as per the order. I suggest you phone them tomorrow & ask if they will do it automatically or if they require a letter or formal application from you.

 

Then you can submit your costs as a wasted costs order. The template is in the CAG library but you will need to amend: http://www.consumeractiongroup.co.uk/forum/content.php?581-Wasted-Costs-order

 

Time isn't up yet I think they have until 21st

 

and it won't be wasted costs, just ordinary costs under CPR38.6(1) - wasted costs is only needed if allocated to SCT

[Upsetandfrustrated]

Ok, so that was what hey were supposed to produce.

Have they produced *any* credit agreement at all?

If not then, yes, write in on the 22nd and ask for the claim to be struck out.

If they have produced *an* agreement but that agreement is not the one required by the Order or is otherwise duff, you will need to write in and explain that, although it *may* not be struck out if there is an agreement of some sort

 

They have produced no other paperwork than what they produced the time before. The agreement they produced is for a separate company in 2006, not 2004. It is not signed or executed as the previous page shows

 

IF, it is accepted and then I would make a further application for the Claimant to submit a fully particularised POC - without that you cannot defend as you will allow yourself to be drawn into no-man's land at any hearing.

As the POC still stand there is still no agreement nor was there ever between you and the Claimant.

You still have a letter confirming that AG are not the creditor

So they have to PROVE they have a right of action through a proper POC, not a Carter special designed to allow them to make it all up on the day (as I think may have happened at teh SO application hearing ....)

 

I thought the judge’s instructions were quite clear?

1. The claimants shall, by 4pm on the 21st February, file and serve a copy of the Consumer Credit Agreement between Barclays Bank PLC and the defendant, together with a full record of all charges levied, credits and debits on the account referred to in the statement of XXXXXXXX.

 

They have not. They have filed a blank (unsigned) copy an agreement between "Raphael & Sons plc", not Barclays. They have also included a dozen statements and that’s it. Surely that is conclusive enough to have it struck out?

Your advice is greatly appreciated.

Edited February 14, 2011 by Upsetandfrustrated
coding went weird!