claim form IND/Heggarty on old Lloyds (5 and a half years) credit card debt***Claim Dismissed***

[AndyOrch]

" I was given a hearing date of Tuesday 6th! This coming Tuesday for my set aside. "

 

So how did you get on ?

[Miscreant]

Judgement was set aside but I was not awarded costs.

 

Judge found it acceptable for the claimant to request the stay be lifted after nearly four years.

 

She was unimpressed with their reasoning for why they stayed and why they requested judgement when they had already replied to the defence.

 

Judge was not overly impressed with my claim that the DoA was not a deed.

 

Claimant has been ordered to provide:

Full deed of assignment

Full statement of account

Reconstituted CCA

Notices of assignment

 

Within 2 weeks

 

By 6th December both parties are to provide all documents that they will rely on to each other and the court ready for the hearing which will be set at the next available date.

[AndyOrch]

Very good ...doubt they can comply...particularly with deed as seen before and found on others threads not to be legally valid.

 

Reading between the lines....Im surprised the Judge as not seen the obvious errors...a) on the courts side and b) the claimants ...you cant respond to a defence unless you proceed to allocation..so in effect they never returned their DQ and the claim should have been struck out over 4 years ago...although the courts have tightened up on applying sanctions since that time for none compliance.

 

Sounds promising.

 

 

Andy

[Miscreant]

Can the points about not responding to the DQ still be raised at the full hearing?

 

I have uploaded what they claim to be the deed.

Can it be argued as legally valid?

 

The claimant insisted that I did not file a defence and that their reply was to a letter that I submitted detailing my defence rather than the defence itself.

 

Even though they clearly received it all from the court.

Edited November 10, 2018 by dx100uk
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[AndyOrch]

A claim would not be " stayed " if no acknowledgment or defence was submitted...they should automatically get a default judgment...why would they then have to make an application to lift a stay if you had not submitted either.

 

The court confirmed you submitted a defence.

 

There are far too many instances on threads were courts are making errors because of overloads and defendants are footing the bill in correcting them by making and paying for applications...you should have been awarded costs in the application...I would argue that strenuously next time in there.

 

Show the paper trail....conformation of AoS conformation of defence...claimants response to defence.

[Miscreant]

I feel I did not put enough effort into making these points clear.

 

I had written a covering note to the Court Manager in my initial N244 application.

 

this was lost in the Northampton email system for 8 weeks due to a typo in my email header,

when I submitted my N244 again to my local court I included another covering letter,

this time to the judge,

explaining why there had been a delay and also explaining why there was merit in my defence.

 

I did this due to a combination of advice given and so as to be prepared for all eventualities.

 

Once in court I tried to take the opportunity to amend my defence to specify more towards legitimacy of the deed and focus less on the statute barred defence as that was potentially out of the window.

 

This did not go as well as planned and meant that I did not highlight properly the points raised in the statement you provided previously, which although submitted to all parties was not common knowledge until actually spoken in court.

 

The upshot was that the judge ordered the claimant to supply the documents specified above.

Failure to supply those documents now is going to be of worse consequence than failing to respond to my request for the same documents.

 

I have learned and understood so much about the process now I have been there and I appreciate the value of outlining valid points in the court room.

 

Anything submitted in evidence but not mentioned will have no bearing.

Anything mentioned but not previously submitted will have no bearing and likely cause a lack of favour.

 

I see the game a little clearer now and although I kick myself as I feel with the right words this debacle could have been dismissed already, I am prepared.

 

I am very interested in points relating specifically to the deed.

IND have sent their paperwork again in regards to the court order and the "deed' is identical to what I previously submitted in post 190. Pages 6 and 7.

Any advice on this would be much appreciated.

 

still have a further week and 2 days to comply with the order but it seems they are presenting that they have complied already.

Again, an opinion on the deed would be very valuable at this point.

 

Thanks again for all of the help and support so far.

Edited November 15, 2018 by dx100uk
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[Miscreant]

Once my defence was submitted in 2014,

accepted by the court and then forwarded to the Claimant,

would they have had their DQ attached for them to fill out?

 

Should I have also received a DQ or would I not be sent one until the Claimant has decided how they wish to proceed?

Edited November 15, 2018 by dx100uk
spacing

[dx100uk]

the court send out both N180 DQ's later in the process

 

if the claimant didn't respond to their DQ then mediation didn't happen etc etc ….the claim gets stayed?

[AndyOrch]

Please note that the onus is on you (the claimant) to advise the court how to wish to proceed once the defendant has filed a response / their time to file a response has expired. If you do not send instructions to the court your claim will be suspended (known as stayed) and you will be required to make an application to a District Judge to reinstate the case.

 

If you (the claimant) would like to proceed with your claim upon receipt of a paid, full or part defence you must notify the court by following the directions enclosed with the copy of the defendant’s response. If you have been sent a questionnaire (DQ) to complete this must be returned by the date specified. Failure to do so may result in your claim being struck out.

 

Andy

[Miscreant]

Is the above taken verbatim from somewhere?

 

The claimant has filed papers and their witness statement which is the same as presented previously.

 

How much of what I want to say in court must I put down in the witness statement that is submitted beforehand?

[dx100uk]

yes that's from the courts site

 

only the basic points and any refs you will use ...you expand verbally if necessary

[Miscreant]

My case rests largely on taking apart the evidence they have provided.

 

They had until today to provide me with the documents specified in the order.

The judge was very clear in the court room that the statement of account must show all transactions and payments, where they went and the details of any accounts that monies came from. This was to be from the start date of the account up to the final balance.

This has not been provided.

This should be obvious yet they seem to think they have fulfilled what was asked in the order. Is there any need to point this out until we are in the court room?

 

Especially as they clearly state that the evidence speaks for itself and as such the witness will not be attending.

[AndyOrch]

I would consider submitting a further statement in support of your initial application and in response to what the claimant has provided since....or at least preparing a skeleton argument for you to refer to at the hearing so you get all the points across on the day and dont miss anything.

 

Obviously they have failed to comply with the court orders thoroughly.

 

 

Andy

[Miscreant]

Would I need to send a copy of the skeleton argument to the claimant?

 

They did provide:

2 X notice of assignment

1 X deed of assignment (apparently)

1 X CCA

 

I have documents to prove that the address details on the CCA are incorrect that I will need to submit. Can these be added as supplementary evidence with a vague outline that I do not believe the CCA is enforceable?

 

I also do not believe the NoA is genuine either, for reasons I can demonstrate in court.

[AndyOrch]

Skeletons should be served on court and claimant pre hearing....at least 3 days pre hearing....but you dont use a skeleton to introduce further evidence....thats a supplemental witness statement.

[Miscreant]

So I cannot say anything in court that I have not submitted previously?

Or can I state on paper that the NoA was never received and then explain the error present on it in court?

[AndyOrch]

So I cannot say anything in court that I have not submitted previously? Say.... yes...from your skeleton...rely on further evidence..not without a SWS.

Or can I state on paper that the NoA was never received and then explain the error present on it in court? See above

 

Andy

[Miscreant]

So if there is an error on the NoA that shows it could not have been printed in 2011 then how much of this do I have to inform the claimant of in writing?

 

The court order clearly states that I must submit all witness statements and documents that I will rely on in court and exchange them with the Claimant within the next 2 weeks.

No mention of skeleton arguments though.

[AndyOrch]

Then just submit a statement in response with evidence (Exhibits)...the skeleton is an optional tool to help you get your points across on the day...as you have previously inferred was a weak point on your behalf at the last hearing.

[Miscreant]

Ok thanks.

I will formulate my statement in the next few days and then run it past you if that's ok.

 

I personally think that all of their evidence is flawed.

 

I'm still intrigued about the apparent "deed"

As far as I am aware a deed must be signed and witnessed in order to be a deed, yet there are only 2 signatures, making this a certificate of sale rather than a deed. Also I am not specifically detailed on the deed, neither my account number, and it is a general document to accompany a number of schedules that follow it, of which my schedule is allegedly one. The schedule has no singature or certification of any kind and essentially any details could be added and put with the signed document.

[AndyOrch]

Deeds of Assignments vary by company and how they complete purchases of portfolios...we dont get to see too many as only a Judge can request its disclosure due to its sensitive private data...IE what they actually paid for the debt.

[Miscreant]

Ah, so the deed will have been presented to the court but not to me?

 

The judge requested the "complete deed of assignment."

 

There is no evidence in what I have been given to show what they paid for anything.

[AndyOrch]

Who knows...I assume they have only disclosed the one you have uploaded...hence the judge questioning its validity....and requesting further disclosure.

 

There wont be any evidence disclosed to you to show what they paid for the debt...you are not privy to that information and anyway its irrelevant to the debt claimed.

[Miscreant]

It was me that questioned the validity of the deed, for the reasons previously stated.

 

Other than that I am unsure on what grounds to question its validity though no updated or expanded version has been provided since the court order.

 

It seems that the deed has previously been shown to be unusable in court.

My other arguments feel pretty strong but if I could rule out the deed as well then their case appears to crumble.

 

What are your views on what they provided as a deed?

What other relevance (or not) does the deed have?

[AndyOrch]

Well its not like the ones I have previously seen...normally a print out of numerous debts amounts/account numbers/names and address....with one covering letter that legally authorises the transfer.....hence the term portfolio.

 

Not an individual debt like yours.

 

The deed legally proves ownership and allows the claimant to claim the debt in their name.