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

[AndyOrch]

CPR 13.3(1)(a) is quite correct and you would normally submit a short synopsis statement with your application to support your application and show you have grounds and a defence with merit.

 

But in this instance..you are setting a side because there has been a procedural error somewhere along the line and therefore...

 

CPR 13.2 (a&b) would prevail.

 

Cases where the court must set aside judgment entered under Part 12

 

13.2 The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–

 

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied;

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

 

Which is what you put in your application and wish to rely on.....and in line with the statememt I prepared at post # 146 ?

 

There is no harm preparing a short statement on which your defence will rely on...bullet points but your application was not based on CPR 13.3(1)(a)

[AndyOrch]

Should I have included a copy of their application for judgement in default with my N244 or will the judge have access to that?

 

They could only get a default judgment if you failed to AoS and submit a defence...which you did .....so its obviously a procedural error.

[AndyOrch]

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

 

So how did you get on ?

[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

[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.

[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

[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

[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.

[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

[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.

[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.

[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.

[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.

[AndyOrch]

If you had to take unpaid time off work to attend the court hearing....some court request proof that it was unpaid time.

 

Andy

[AndyOrch]

Far too wordy..I lost interest at ....." On April 24th 2018 the claimant issued a reply to the s.77/78 request."

 

This is a credit card claim...therefore its section 78.....lose the 77 on the 8 references made to it.

 

Andy

[AndyOrch]

What exactly have you been directed to submit ?

[AndyOrch]

Ah okay.....well it needs to be shorter succinct points dealing with each issue and run in chronological order....take a look at the claimants statement in support of its application to give you a guide.

 

Give it headings in bold to break up the length...

 

The claim

 

Response

 

Timeline of events

 

Claimants application to lift the stay

[AndyOrch]

Well I would reiterate the application in your timeline and how the claim was never allocated and point out the errors made in the courts process which facilitated the claimants application denying yourself the opportunity to submit statements or evidence etc etc....

[AndyOrch]

In your opening paragraph you state " A further copy of the s.78 request was included with the defence and passed to the Claimant by the court."

 

Did you post your defence to MCOL ?

 

Attaching a copy of the section 78 was pointless and how do you know it was passed to the claimant by the court....do you mean just the defence not the section 78 ?

[AndyOrch]

Am I better showing all my cards now and presenting to the claimant and the court or would I be better off keeping a few points under my hat to catch them out at the hearing?

 

I worry that they may attempt to introduce new evidence if they realise how poor their current evidence is.

 

At the moment they seem to believe their position is strong with the current evidence and as such the witness will not be attending and will send an agent in her place.

Hence my earlier question regarding points being raised that were not previously in a witness statement.

ie. FCA reference. Illegible print.

 

If its not in your statement and evidenced it cant be used or relied on...this may be your last shot so dont hold anything back.

[AndyOrch]

Yes

[AndyOrch]

Already covered in posts #228 - 230

[AndyOrch]

Yes worth raising ...reflects that their WS is inaccurate and cannot be relied upon..perhaps ask the judge to ask them to expand on this medical condition.

[AndyOrch]

Well done thread title updated.

 

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Regards

Andy