Court claim from Link Financial. Please help.

[nicklea]

As pt2537 argues, strike outs are often dangerous territory, because if you fail, you bear their costs. Judges seem to be very generous to claimants against LiPs. Perhaps better to give them a bit more rope. If they fail after an extra 28 days, then their goose is cooked.

 

I'm afraid that I disagree with you here. If they fail after an extra 28 days then it is the OP's goose that is cooked as he/she still has no sight of the agreement and now has to put in a defence.

 

I would also say that pt's advice seems to be the opposite of what you are saying:-

 

If the Claimant cannot disclose then you cannot plead and this is where an application to strike out the case should be used in my opinion, there is no point filing a verbose defence which deals with everything and the kitchen sink where you dont even have the agreement they are reliant upon.

 

The CPR is there to help you, to help the court effectively manage the case and to set out what is expected from a claimant. it is unlikely that the court will refuse to order the Claimant to disclose to you the docs upon which the claim is based and the court will also take into account the fact that you will need more time to file your defence too,providing you ask for it!!

 

 

As donkeyb says, you MUST write to the court telling them that you have agreed an extension of time to file the defence. You may wish to refer to CPR part 15.5 when you do this.

 

However, this only gives you an extra 28 days. So what happens after that?

 

That is when, in my opinion, you should make the application to strike out. I would suggest that you do it before the 28 day stage, say after 14 days so that the court has it well before the 28 day cut off point.

 

If you have a read of the application it is asking for an unless order. It is giving the creditor a FURTHER 14 days - or you could put in 28 or any other number that you want - to provide the information and then if they don't then the claim can be struck out:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage&p=1771008&viewfull=1#post1771008

[pt2537]

Sorry Nicklea but im not sure i follow

 

Are you saying put a defence in without disclosure?

 

That is contrary to CPR 16.5

 

(2) Where the defendant denies an allegation –

(a) he must state his reasons for doing so; and

 

(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.

 

 

you cannot make a bare denial, the rules require a denial to be backed by a positive averment as to the facts relied upon

 

 

My point being that if you file a defence that fails to deal with the matters in hand then you will face costs of the amendments later, the general rule is that the amending party pays the other parties costs. I have to say i have the costs orders to prove this point on my desk.

 

 

Ignorance is no defence, the rules give you the requirements and the route if the party fails to disclose is an application for an order compelling disclosure. you will also get an award of costs due to the claimants breach of the rules CPR 31.15 is explicit on the time scales

 

 

CPR 15.5 also allows for an agreed extension of time for the Defence, if the Claimant dont play the rules then again you apply for a court order and get the court to tell the Claimant what he must do.

[DonkeyB]

As pt2537 argues, strike outs are often dangerous territory, because if you fail, you bear their costs. Judges seem to be very generous to claimants against LiPs. Perhaps better to give them a bit more rope. If they fail after an extra 28 days, then their goose is cooked.

 

Nicklea, I don’t understand what you’re getting at. How is the OP’s goose cooked? The OP would have done all in their power to get the info by agreeing an extension of time to file a defence – with a letter from the claimant giving extra time to get the documents to support its claim, then the claimant failing to provide it, that gives the OP some real evidence to use in a strike out, ie. the claimant by its own admission has failed to disclose documents.

 

At this stage (or earlier) the OP could also ask for a court order to have the documents supplied, but as the claimant has offered to supply the docs with more time, this would be pointless before the time is up.

 

That seems a much more positive scenario. I don’t understand what you are disagreeing with.

[nicklea]

Sorry Nicklea but im not sure i follow

 

Are you saying put a defence in without disclosure?

 

 

My point being that if you file a defence that fails to deal with the matters in hand then you will face costs of the amendments later, the general rule is that the amending party pays the other parties costs. I have to say i have the costs orders to prove this point on my desk.

 

 

Ignorance is no defence, the rules give you the requirements and the route if the party fails to disclose is an application for an order compelling disclosure. you will also get an award of costs due to the claimants breach of the rules CPR 31.15 is explicit on the time scales

 

 

CPR 15.5 also allows for an agreed extension of time for the Defence, if the Claimant dont play the rules then again you apply for a court order and get the court to tell the Claimant what he must do.

 

I'm sorry that I didn't make the point I was trying to make clear enough and it led to some misunderstanding.

 

I am not saying put a defence in without disclosure - quite the opposite. I was trying to highlight the issue that cpr15.5 only gives an additional 28 days and that if the creditor has still not disclosed the documents within that time then the defendant faces a real problem unless they take steps before the end of the extra 28 days to make an application to the court as you also say above.

[pt2537]

ah yes, quite

 

This is the problem where people should not sit on their hands

 

7 days for CPR 31.14, if non compliance then i want answers why, if the answers arent satisfactory then its an app to the court, when i say satisfactory i mean a valid reason, if they dont have the agreement then they need to get it, but they shouldnt be allowed to take forever more, they issued, then they should have the docs.

 

You can agree up to 56 days with the opponents, that is more than enough time to get the docs, so id say if 28 days passes, and no docs arrive, id want a dam goood reason or id be off to the court with my N244

[The Janitor]

Thanks again guys.

I'll get a letter off to the court today, enclosing a copy of the letter sent by Link.

If I'm understanding correctly, this will give me another 28 days to either recieve the docs from Link or send in a defence/strike out.

Will a short note do? I'm not great at composing letters I'm afraid.

[DonkeyB]

Just make sure you have all the details on there – case number, claimant and defendant, date of claim, etc. Also quote CPR 15.5, as suggested above.

 

Yes, include a copy of the letter from Link and make it clear YOU are allowing THEM a further 28 days, as they have agreed.

 

It may be best for you to state the date you believe the extension works until, ie. about 56 days after the claim was originally issued.

 

Perhaps copy the letter to Link, so they know the obligation they are under.

 

Send all recorded.

[The Janitor]

Done.

Thanks once again to all.

[The Janitor]

I sent the letter to court yesterday by special delivery. They have received it today.

In the post today I received a Tomlin Order from Link.

I assume you guys know what these are about.

The order says all proceedings will be stayed if I agree & maintain payments of £20 per month until a total of £2040 is paid.

This is £2000 for Link + £40 for the court fee.

I'm on my way to work now but if I can scan + upload in the morning if required.

[DonkeyB]

Me thinks you have them on the run...

[pabrmu]

Hi TJ,

It does seem like you have them on the run.

If this was me, I'd tell them where to stick their Tomlin Order.They usually attach a Voluntary Restriction order to the order.

It is obviously up to you, but `I know what I would do.

[The Janitor]

Ignoring for a second this tomlin order, I'd like to address the letter I received from Link which offered an extension so they may get the docs together.

At no point does it mention cpr15.5 so will the court still grant the extension? Should I phone to make sure? My 5+28 days are due to expire on 27th, I think.

[DonkeyB]

Call the court and check they have the letter and will not entertain any application for judgment from Link in the meantime. Record the call if you can.

 

The court should grant the extension automatically given the evidence of Link’s letter.

[HFO-vered]

I sent the letter to court yesterday by special delivery. They have received it today.

In the post today I received a Tomlin Order from Link.

I assume you guys know what these are about.

The order says all proceedings will be stayed if I agree & maintain payments of £20 per month until a total of £2040 is paid.

This is £2000 for Link + £40 for the court fee.

I'm on my way to work now but if I can scan + upload in the morning if required.

 

Do not get involved in a Consent nor Tomlin Order. If your circumstances change, and you default they wcan enter judgment without any notice to you. Very dangerous document, and extremely difficult to get set aside by the Court. This can only be done on very limited grounds as the Courts look at it as a bargain which the parties freely entered into. Avoid it at all costs.

[The Janitor]

Ok so I'm guessing that all would say the tomlin order is a bad idea? Fine by me.

I just rang the court & the chap I spoke to said that the letter I sent regarding the extension would be "in the system" & will take 5 days to process.

He said it would be sorted by Monday but Link could still apply for judgement anyway as it was "entirely up to them".

Can't say I'm happy with any of that. He couldn't even confirm they received the letter although I did send it special delivery so it's been signed for.

In the meantime, I believe my 5+28 days will expire on the 27th of this month so I'm hoping Link will be playing ball.

[DonkeyB]

It would be a pain, but easy to set aside.

[The Janitor]

Recieved from the court today:

 

I can confirm that the letter mentioned below was received, and the contents noted on the court record. However, any agreement of an extension of time for filing a defence is between yourself and the claimant, and the court cannot confirm that judgment will not be entered. If you wish you may make a formal application to the court for an extension of time for filing the defence. The fee for this is £40.00 and the application will be considered by a District Judge, the outcome is at the District Judge's discretion. I have attached form N244 in case you feel you would like to make the application.

 

Not quite what I was expecting.

I'm going to need some more help here. What do I do now?

[DonkeyB]

CPR 15.5 is clear and short:

 

Agreement extending the period for filing a defence

 

15.5

(1)The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

 

(2)Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

 

I can see no mention of applications being required, just the information being made available to the court. Puzzling. I think whoever wrote that may be wrong – you have done as required.

 

Anyway, easy to set aside with that letter is they dare go for judgment; just keep an eye on the revised date then go for strike out if they fail to comply.

[The Janitor]

Maybe it's because I'm dealing with the bulk centre at Northampton.

When I spoke on the phone it seemed like I was dealing with a call centre rather than a court clerk.

I guess I should send another letter to link explaining when this extra 28 will expire & that they should not attempt to secure a judgement while the extension is in force.

[DonkeyB]

You are right, to a large extent. The concrete monolith that is Northampton CC is really a factory for churning out claims at around £100 a go. Your assessment of it as a glorified profit-making call centre is on the nose.

[The Janitor]

Reply received from Link.

As the poc's mentioned the default notice, assignment and original agreement, I ask for all 3 documents in my cpr request.

They have sent me a copy of the default notice & a copy of the assignment but no mention of the agreement.

They "look forward" to my reply.

My move?

[DonkeyB]

Write and point out they have failed to comply with your CPR request, that the CCA as mentioned in the PoC remains outstanding, and you expect same by return.

 

What’s you’re final deadline for submitting your defence? You need to request that they supply the CCA seven days before this final date so you have time to respond.

 

Let them know that failure to comply will result in an application for a court order to produce the documents.

[The Janitor]

I'm pretty sure the deadline will be 25th dec.

[The Janitor]

Yes, on checking the deadline will be 25th dec.

It doesn't look as if I will be supplied with the agreement by then & so I need to consider my next move.

Can I form a defence without being supplied with the agreement?

I'm sorry I need more help here.

[The Janitor]

I must apologise for my constant asking for help here. I realise it's a self-help forum & I'm sure that if I spent enough time I would probably find the answers I need but unfortunately time is running out & I would be very grateful if someone could suggest my next move.

Is it now time to construct a defence or should I make an application to get the claim struck out?

I don't think there is any more time to haggle with Link as the deadline is due on the 25th Dec so whatever I should be doing I really do need to be doing it now.

Again, my apologies & my thanks to all who have taken an interest so far.