Creditor has made claim through court - **STRUCK OUT - THEN REINSTATED**

[Kazzie]

I found info on the statement of truth so added it to the bottom of the defence. I've run out of time so have just emailed it off as they have to recieve it by 4pm if it's to be classed as recieving it today.

I hope it's ok!

[Kazzie]

I recieved this today in response to my CPR request to IND. If someone has the time could they tell me what this means in English please, and how I should respond as I have already emailed my defence to the court (yesterday).

 

We refer to your letter dated xxxxxxxx 2011.

Having taken counsel's advice on the issues you raise, we respond as follows.

This claim was issued online by the Claims Production Centre and accordingly paragraph 7.3 of the Practice Direction to CPR Part 16 does not apply to it.

This claim is likely to be allocated to the small claims track. As you are aware, CPR Part 31 does not apply to small claims. In our view it would be illogical and contrary to the overriding objective for CPR Part 31 to apply between issue and allocation to the small claims track.

The claimant is an assignee of the debt. It is not the original creditor. The claimant does not, at present, have in its. possession the original contract documentation.

We can assure you that the claimant will comply with all directions given by the court in due course for the provision of copy documents. In so far as the documents are not yet in the Claimant's possession, the claimant will be taking appropriate steps to obtain copies.

The fact that we cannot at present provide copies of the documentation you have requested, does not provide an excuse to delay your response to the claim, nor does it justify applying to have the claim struck out. A defendant who genuinely could not respond to a claim without copies of particular documents would need to explain his reasons in detail. In an appropriate case, he could apply to the court for the court to direct that copies be provided.

You have not set out any satisfactory reasons in your letter. The particulars set out in the claim form in this case provide you with sufficient information to respond to the claim. If you fail to do so within the time provided by the CPR, the claimant reserves the right to enter judgment in default without further notice.

[BRIGADIER2JCS]

I think you need to enter an embarrased defence

to hold them off, without the documents you cannot

file a considered defence.

I'll bump the thread for more advice.

 

 

BUMP

[Kazzie]

I think you need to enter an embarrased defence

to hold them off, without the documents you cannot

file a considered defence.

I'll bump the thread for more advice.

 

 

BUMP

 

Ok thank you, but I already filed my defence yesterday (as in post 25). I'm not even sure that I've worded it correctly

[sillygirl1]

Simply put "the CLAIMANT DOES NOT HAVE THE DOCUMENT IN ITS POSSESSION" means that they should not have put the claim through.

 

Get that reply to the court and ask for a strike out due to abuse of process by the claimants not having the required documentation BEFORE entering a claim.

 

DO NOT enter an embarrassed defence, you don't need it, clear cut case of abuse of process by claimant. Embarrassed defences are a time wasting exercise when there are other avenues to follow which give a more desired result with less effort on your part.

[sillygirl1]

Never worry about 'wording defences correctly', you have no legal knowledge and are a litigant in person, it is perfectly acceptable for you to NOT know legal jargon, and in fact the less legal jargon and cases you cite in your defence gives the other side less room to counter argue in court. I've seen this in Payday loan cases time after time.

[Kazzie]

Simply put "the CLAIMANT DOES NOT HAVE THE DOCUMENT IN ITS POSSESSION" means that they should not have put the claim through.

 

Get that reply to the court and ask for a strike out due to abuse of process by the claimants not having the required documentation BEFORE entering a claim.

 

DO NOT enter an embarrassed defence, you don't need it, clear cut case of abuse of process by claimant. Embarrassed defences are a time wasting exercise when there are other avenues to follow which give a more desired result with less effort on your part.

 

Thanks for your reply. The only trouble is, is that I filed my defence the day before I recieved IND's response as above.

In writing it I took the advice of your previous posts combined with others advice and am hoping I have said the right things. The defence I sent is in post 25. If you have time would you mind reading it please and telling me if you think it adequately covers everything you've just mentioned? If it is ok then I presume I need do nothing more until I hear from the court.

Thanks again for your advice, it's much appreciated!

 

EDIT: Sorry - have just re-read your post and think i may have got the wrong end of the stick. Did you mean that I should send a copy of IND's reply to the CPR request to the court now, even though I have already sent in my defence?

[sillygirl1]

The defence is okay, you can't possibly cover every single thing in a defence so stop worrying.

 

Yes, send the copy of IND's reply to the court, even though you have already sent in the defence, they have broken the rules and the court manager needs to know this... point out that a claimant must have the documents it relies on for its case at the time of filing a defence, and in this case they clearly do not have the documents that would help both sides establish that the case actually should go to court.

 

Bet they were hoping for a judgement by default - which IMHO should be SCRAPPED.

[Kazzie]

Ok brilliant, thanks a million.

I emailed my defence to the court. Will it be ok to email them the reply from IND with a covering letter asking for this document to be added to my defence, or should i be filling out some sort of special form?

Sorry if i'm being a dumbo

[sillygirl1]

I'd email it and ask it to be brought to the attention of the court manager as a clear abuse of process has taken place on the part of the claimant, who should have had the documentation in their possession BEFORE they brought the claim to court.

 

State that in a short covering note and then give them a ring on Wednesday to see what is happening.

[Kazzie]

Ok, thank you. Will do it now.

[Sidewinder]

...

[Kazzie]

In response to my defence, the court sent a letter last week saying that the Claimant must contact the court within 28 days of recieving a copy of my defence or the claim will be stayed. Could someone tell me exactly what this means please?

 

Also just to update, today I recieved a response from the court concerning the email I sent them on the advice of sillygirl1 - asking them to bring INDs letter 'to the attention of the court manager as a clear abuse of process has taken place on the part of the claimant, who should have had the documentation in their possession before they brought the claim to court.'

 

The response from the court today says that 'Please be advised that the above case has been referred to the District Judge for directions on how to proceed. It can take 3 - 6 weeks to receive a response at which point you will be notified accordingly'.

 

 

 

 

 

 

[kurvaface]

Well having it bumbed up to the judge is good

[BRIGADIER2JCS]

All the court is saying is that if the claimant fails

to continue the claim within 28days the whole thing

gets put on hold, if this happens they will have to apply

to the court to have the stay lifted, and then they will

your consent to the application.

 

Brig.

[Kazzie]

Ok, thanks for the replies. Will just sit tight then and wait to see what happens.

[Kazzie]

I recieved a reply from the court today concerning my request to have the claim struck out as an abuse of process has taken place.The letter says :

 

Upon reciept of the defendants correspondence regarding the Claimants response to the defence it is ordered that:

1)Allocation Questionnaires be issued - the points raised by the defendant can be dealt with in the ususal way by way of appropriate directions when allocating the matter to track. If the defendant wishes to pursue to strike out the claim then an application will be required which will necessitate an on notice hearing.

 

I'm not sure what this means. The letter I originally recieved from the court stated that a copy of my defence had been served on the Claimant and that if the court hadn't heard from them by a set date then that the claim will be stayed. Does the response I recieved today mean that the Claimant has responded to my defence, and if so in what way?

 

I'm also concerned about the AQ. I believe this means me having to pay £80 and I cannot afford this. I'm now wondering if I'd be better off just throwing the towel in as I have neither the time nor the money to fill it in before the 29th December. Would someone also mind explaining to me what an 'on notice hearing' is please if they have the time.

[sillygirl1]

I think it means that you have to fill in the Allocation Questionnaire and ask for a strike out in Question 18 due to abuse of process.

 

You don't pay any money for the AQ, the other side has to pay.

[Kazzie]

Oh that sound much better than I thought! Thanks very much - I wish I was as silly as you

The AQ is form N149. Is there a guide on filling it out anywhere? I found one but it only concerned bank charges.

[sillygirl1]

You should get a form from the court, and just answer the questions as they come up, the bank charges one is no good for this type of case. Question 18 is the one where you can direct the court to the strike out... or so I believe.

[Kazzie]

Ok, will do. Does the fact that it hasn't been stayed mean that IND have responded to my Defence - if this is so shouldn't I have recieved something from them or the court other than the AQ? Or is it possible that they haven't responded and the case would have been stayed had I not requested a strike out?

[kurvaface]

You get the details of their claim after AQ I think.

[DonkeyB]

Just call the court and ask if they have responded. They almost certainly have – AQs would not be sent out otherwise.

 

As SG says, you can ask for the directions within the AQ that would otherwise cost you £80. Knows her stuff does SG...

 

... but you must have arguments based on law, and which can allow you to ask for a strike out if (a) the judge allows your directions and (b) they then fail to comply.

 

Correct wording of your draft order is crucial.

[Kazzie]

I have asked the Court if IND have responded to my defence and all they said is that the Claimants Solicitors stated they wished to continue with the case, and that is the reason I have to fill in the AQ. I have to return it within 9 days.

Donkey B has said that I must have arguments based on law but obviously I do not have this knowledge and nor can I find it elsewhere. Is there anyone that has the time and that is willing and able to help me with this, or failing that can someone please advise me how to obtain this information elsewhere please?

 

IND still haven't produced a copy of the CCA I requested. In my AQ I would like to state this and ask that the claim be struck out as it was brought against me without having this document in their possession, also that the account was in dispute at the time that they brought this claim (due to the failure of a different DCA failing to respond to the CCA request 4 years ago).

As has been stated earlier, the correcting wording of this draft is crucial and I would like to get this right.

[Kazzie]

What bugs me is that in order to fill out the AQ to get results, I must have arguments based on law. How the hell is a layperson meant to defend themselves then, unless they can afford a solicitor? The whole system is unfair. They bamboozle you with legal jargon that we haven't the expertise to answer, so end up losing a case we should otherwise have won. The whole system stinks! I realise there are people on this site who have the expertise to help others that cannot afford justice, but they are obviously few and far between, and there are just too many people like myself asking for help.

 

It would seem that on the whole justice is something you're only entitled to if you can afford it