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

[gh2008]

In your letter you need to make it quite clear that they have merely submitted further copies of the paperwork already made available to DJ ### at the hearing of ##/##/#### when the Order was made. You then need to ram home the fact that they have therefore NOT complied with the Order and therefore the claim should be struck out.

 

Otherwise, at first glance it may appear that they may have complied IYSWIM

 

I would fax the letter to the Court Monday @ 4pm to make sure it goes on the file before the file goes before the DJ again

 

Get rid of it next week and then the Limitation Act kicks in for you

[Upsetandfrustrated]

Yep, I get it now. Thanks. I will do the letter and post it here before the weekend so I can get some input.

 

Thanks again.

[Upsetandfrustrated]

I was thinking of this as the letter to got to the court. Do I do it as a formal letter or in the form of the strike out application I did for the striking out order?

 

 

1. The claimants have failed to provide by 4pm on the 21st February to the court or the defendant 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 as ordered by District Judge XXXXX on XXXXXXX in paragraph 1 of her order.

 

2. The claimants have merely provided further duplicate copies of an application form which the claimants are trying to pass off as a properly executed agreement as required under s.77(1) of the Consumer Credit Act 1974 and are in breach of the order of District Judge XXXX on XXXX, a pointed noted by District Judge XXXX on XXXX and recorded by the Court. (I said to her, that they had provided only an application form, which she responded "yes I can see that". I then asked for that to be noted to the court (I don't know if I have watched too much TV in that point)).

 

3. The claimant is in default of points 1 and 3 of District Judge XXXX order on XXXX and therefore the claim is should now be stuck out

 

4. The defendant asks for costs in the case as ordered by District Judge XXXX on XXXX in item 4 of her order.

 

 

Is the above OK, how can I also frame it so they are not able to simply then send out another judgement or pass it to another DCA?

 

Any help is most gratefully received.

[Guest]

They have filed a blank (unsigned) copy an agreement between "Raphael & Sons plc", not Barclays.

 

upset

don't want to confuse things! but, what about this 'other' (unsigned) agreement? have read on the interweb that poss Rapheal (who are/were part of the lenlyn group), and that their 'monument' cr card is/was managed by barclays?

Edited February 20, 2011 by Ford
typ

[gh2008]

 

 

2. The claimant has merely provided further duplicate copies of documents already filed and placed before DJ at the hearing of ##/##/####

 

 

Personally I would change #2 to something like the above.

 

There is nothing to stop them selling it on to another DCA though, although obviously any action could be seemed unfair in the FT's eyes and if they took action with similar paperwork I would suggest you would have a good case for another strike out.

 

It's the dreaded 'no man's land' - once it is struck out, you could always make a no prejudice full&final offer of a few % of the outstanding balance if you really want to see the end of it.

[Upsetandfrustrated]

Ok, how about this?

 

 

1. The claimants have failed to provide by 4pm on the 21st February to the court or the defendant 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 as ordered by District Judge XXXXX on XXXXXXX in paragraph 1 of her order.

 

2. 2. The claimant has merely provided further duplicate copies of documents already filed and placed before DJ at the hearing of ##/##/####

 

3. The claimant is in default of points 1 and 3 of District Judge XXXX order on XXXX and therefore the claim is should now be stuck out

 

4. The defendant asks for costs in the case as ordered by District Judge XXXX on XXXX in item 4 of her order.

 

Do I do it in a court style (such as the strike out order or in a formal letter?

 

Ford, - They included a blank (unsigned and dated terms and conditions June 2007) as proof of the claim. It did not say Monument or Barclay's. If I had signed and taken out an agreement with them, I would have signed (again if I had taken credit) a T&C's form from Monument in 2004.

[Guest]

..........Ford, - They included a blank (unsigned and dated terms and conditions June 2007) as proof of the claim. It did not say Monument or Barclay's. If I had signed and taken out an agreement with them, I would have signed (again if I had taken credit) a T&C's form from Monument in 2004.

 

ok. was just thinking that they may try and use this in satisfaction of the order re agreement, even though it is unsigned and not 'barclays' as such?

Edited February 20, 2011 by Ford
typ

[Upsetandfrustrated]

I think the judge saw that agreement (blank) and said it was unexecuted.

[Guest]

I think the judge saw that agreement (blank) and said it was unexecuted.

oh ok. (thought it was a 'new' one!)

Edited February 22, 2011 by Ford
typ

[Upsetandfrustrated]

I am so frustrated! I did the forms, took them to the court, asked them to put them in front of the Judge. The bloke behind the glass looked at me as if I were some sort of criminal! He checked their system and said he could not see anything in there, but would not put anything in front of the Judge as they had up to five days to process any paperwork. This news is so unfair. If I missed the deadline they would get a default judgement in a flash.

 

As of today, they have failed to comply with the court order, but the administration staff at the court want to make up their own rules from what I see.

[gh2008]

Oh dear - maybe I should have explained that bit. Yes, that's normal.

 

The only place i know where you get same day service is the High Court, but then you don't put papers in you appear before a Master in their Chambers to beg and plead your case (and a very interesting experience it is too....)

[Upsetandfrustrated]

Well I am beside myself now. I submitted the letter and a draft of the striking out order on Monday. I then phoned as explained in an earlier post was told to wait. I phoned the court yesterday to be told by one of the staff that they had received the same paperwork as me at 3.45pm on Monday. The paperwork being the application form, blank T&C's and the same dozen statements.

 

I said, well that simple they have not complied. The court staff I spoke to disagreed. She told me they had received something and I was advised I needed to put in a full defence in line with the Judges order. I said that they had failed to comply with item 1 in the Judges order and she said that was for a Judge to decide at a hearing!

 

To clarify, they have not provided anything different than what they have before. They were told in no uncertain terms what they had to do to comply and now it appears the court staff (a very arrogant person who said she knew the rules) are giving them a second chance.

 

What should I do?

 

I fear I will have to put in a defence, when they have not done what the Judge told them to do. I fear my defence will be countered by them and they will get a result by bamboozling me and the court. I am not worried that they do not have the alleged agreement, if there was one, they would have produced it by now.

 

Why can the Judge say they must to X in a certain time and when they fail the court staff they will allow it through?

 

What should I/can I do?

[gh2008]

Application for strike out. £40 without hearing

[vjohn82]

Why should anyone pay attention to a letter? It needs to be on an N244 with the application fee being paid. That's the ONLY way you can apply for a strike out of their case.

 

We make it clear that they have not complied with the order... job done.

[Upsetandfrustrated]

We had the application to strike out hearing a few weeks ago, that's why the Judge did the order. Do I have to apply for another striking out hearing?

 

I thought when the Judge at the first striking out hearing said comply with my order within 21 days or this claim will be struck out was enough, is that not what should have happened? If not, I will do another N244, pay another £40.00 and ask for a hearing.

[vjohn82]

Hmmm... what page is the order on or can you point me to it if it is somewhere else? I would like to take a quick peek at it. Sorry but I've got a mountain of stuff on the go and I can't spend ages looking through

[Upsetandfrustrated]

Hi, its on page 6, copied below:

 

 

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.

[vjohn82]

Are you able to scan what they have sent to you? i.e. the alleged credit agreement referred to in para.1?

[Upsetandfrustrated]

Are you able to scan what they have sent to you? i.e. the alleged credit agreement referred to in para.1?

 

A scan of the alleged agreement is on page 4, they have sent four copies of the same to me, and twice to the court. The Judge said in the strike out hearing that she saw it was an application and not a signed and executed agreement. On page five you will see they have even said it is not their debt.

[Upsetandfrustrated]

Thank you so much. Unfortunately, this morning in the post I have a letter from BCC this morning as below.

 

 

Now in the envelope was my signed application card (the one you get in a newspaper), but not the signed and exicuted agreement showing APR etc. Also was couple of photo copies of statements. All these are in the banks name not Arrows. Does that make a difference?

 

 

Sorry, but I built my hopes up of beating these bullies, but now I think they have pulled out the trump card.

 

Copies of the alleged agreement. (this is a copy of page four)

[vjohn82]

No trump card here in my opinion.

 

There's no prescribed terms and they are not allowed to be found in any other document. The court is prevented from enforcement under s.127 (3) of the Consumer Credit Act backed up by case law (Wilson vs. Hurstanger) which ruled:

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1. The discretionary power under section 65 (1) to order enforcement of an agreement which does not comply with schedule 1 may be exercised on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2)).

 

Even the part where you signed, under "Declaration", states that you are "applying" for a card. Applications for credit are not binding on a prospective consumer under s.59 of the Consumer Credit Act.

 

I'd argue that they are still prevented from enforcing the agreement based on this evidence.

[Upsetandfrustrated]

So, on the face of it, I cannot just get their claim struck out on the basis that they did not comply with the Judge's order in the last striking out hearing and need to file a full defence?

[vjohn82]

Perhaps not. They have provided new evidence which contains an agreement between you and the original creditor. Whether this agreement is valid or not is down to the Judge. They have complied with the order in my opinion.

 

That doesn't mean that the evidence they have provided is requisite for enforcement purposes; that's what your defence is going to argue. Don't forget the lower courts are bound by higher court rulings and there are plenty to use to trash their evidence.

 

If there's anything you need, give me a shout.

[Upsetandfrustrated]

vjohn82,the documents sent to the court this week were seen by the judge in the strike out hearing. That is why she said she wanted the actual "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". They have just sent duplicate documents already seen by the Judge. They have not presented anything different. The judge said she was making it clear on the case notes that she did not accept the documents already served and wanted to see the ones mentioned above.

 

If I were to send in my claim pack a sheet of paper with the word "hello" on it and referred to it as my evidence and the Judge said no, I want to see the actual agreement, but sent in the same piece of paper with the word "hello" on it. Would the Judge not strike out the claim?

 

I am really lost now. I understood the words of the judge perfectly as I have full notes. If the shoe were on the other foot, I can guarantee they would get a default judgement.

[AndyOrch]

Upset

 

Its for the DJ to decide if they have complied, quite clearly and from what you state they have not.

Dont rely on Court staff to direct you, they are simply not qualified or in a position to, from what you state he will not accept what has been submitted and therefore

you cant comply with point 3 of his last order, wait until you receive anything further from the Court re directions in the matter

and dont waste anymore money with further applications.

 

Regards

 

Andy