Link/IDR Claimform - old Barclaycard 'debt'

[Duo]

Should this be an automatic process undertaken by HMCTS? I didn't know that it applied to things like requests to lift stays since apparently I wouldn't have any input in that process.

[AndyOrch]

File and serve...its expected by the courts that parties act according to the Civil Procedure Rules and serve copies...at the very least the court should have sent you a copy.

[Duo]

File and serve...its expected by the courts that parties act according to the Civil Procedure Rules and serve copies...at the very least the court should have sent you a copy.

 

I haven't had anything yet. I'll see what the post brings tomorrow.

 

If the stay is lifted then would the next step be an attempt to strike out with an Unless Order due to the illegible / incomplete CCA and non-compliance with the CPR 31.14 request?

[AndyOrch]

If the court allows the stay to be lifted then the claim is proceeding to trial...Im afraid you cant request strike out for the above reasons...that is for a court to determine at trial.You can oppose their application though by way of a witness statement for those very reasons and request the court to order the claimants to full disclosure...before considering lifting the stay.

[Duo]

How do I oppose via a witness statement?

 

 

Will they send out a letter offering me that opportunity or do I just have to submit it to them?

If it is the latter is there a specific form that I need to use?

 

I am told that the case file has been sent to a judge for a decision.

Will the witness statement still be passed to the judge in these circumstances?

 

On a slightly different note,

I notice that there is a book advertised on this site about dealing with the Small Claims Court .

Is there one for dealing with the County Court?

 

If the court allows the stay to be lifted then the claim is proceeding to trial...Im afraid you cant request strike out for the above reasons...that is for a court to determine at trial.You can oppose their application though by way of a witness statement for those very reasons and request the court to order the claimants to full disclosure...before considering lifting the stay.

[AndyOrch]

How do I oppose via a witness statement? Have you got a date of the hearing ?

 

 

Will they send out a letter offering me that opportunity or do I just have to submit it to them? You should receive a Notice of Hearing this normally states your options.

If it is the latter is there a specific form that I need to use?

 

I am told that the case file has been sent to a judge for a decision.

Will the witness statement still be passed to the judge in these circumstances? Yes to support their application if there is one

 

On a slightly different note,

I notice that there is a book advertised on this site about dealing with the Small Claims Court .

Is there one for dealing with the County Court?

Small Claims Court is normally County Courts

 

Andy

[Duo]

Thanks Andy,

 

I don't have a date for the hearing. I actually called them up and asked them what the status of the case was and they told me about this application to lift the stay. Other than that I haven't received anything yet.

 

For the book I actually meant a book for Fast Track cases. Since the amount claimed here is over £12,000 I doubt that ti will be allocated to the Small Claims court.

[AndyOrch]

Fast track Claims are also held in Small Claims Court ....County Courts.

[Duo]

You need to do a SAR to Barclays this will provide you with a lot of evidence.

 

[...]

 

Well if they can't provide one as evidence the Judge will find it peculiar... argued properly it can save the day. the statutes are mainly there to protect us the consumer.

 

Thank for this, jack. I did a SAR earlier in the year but I need to ask for more information and go through everything I received again.

 

Fast track Claims are also held in Small Claims Court ....County Courts.

 

Thanks Andy, I have purchased the book.

[Duo]

This is turning into a mess because I used the defence suggested by BankFodder first

then I had to add to the defence with the points from andyorch.

 

The CBCC may or may not not have added the additional points to the file earlier,

they don't know and since the file is with a judge for consideration of lifting the stay they can't confirm it.

However they say that they have added the points to the file now just to be sure.

 

Apparently I now need to serve a copy on this on the Claimant.

 

I have two worries here:

1) That this may automatically give them the right to lift the stay so that they can reply to my defence

although, if they had these additional points they would most likely have never applied to lift the stay.

 

2) The additional defence points my be rejected by a judge at a later stage because he / she

may consider them not to have been submitted correctly.

I have no way of knowing how the CBCC works.

 

The CCA that I was sent before is illegible and I think that I should write to Kearns

and let them know that this case is still unenforceable

and no further action should be taken to enforce it because they have not complied with my request.

 

Any advice on this situation?

 

I think that there is a very strong probability that the stay will be lifted if I take no action.

[dx100uk]

1.doubt it

 

 

2. neither do we but again doubtful

 

 

3. no you don't.

 

 

sit on your hands IMHO.

 

 

dx

[AndyOrch]

The stay will be determined on the file/clam/claimants actions.....CCBC stated that your addition submission was added to the file at the time of submission....you are tending do over think a little here Due...as you did with the initial defence.

 

A defence is rarely if ever looked at unless it gets to trial.

[Duo]

Thanks guys.

[Duo]

the stay was lifted and the Directions Questionnaires issued with proposed allocation to the Fast Track.

 

They sent me their directions questionnaire but they had no proposed directions with it.

 

The form is form N181.

 

Their form:

A. Legal representatives advice on settlement check box checked.

A1. Yes

A2. Yes

B2. No

C. Yes

D1. No

E. No, No, No

F. They state that they wish to rely upon their witness statement and place parties on notice that they wish to rely on hearsay evidence.

G. Less than one day

 

Here is what I have so far:

A1. Yes

A2. Yes

B2. No

C. Yes

D1. Yes (application to set aside order to lift stay - no hearing date yet)

D4. What do I put here?

Standard Directions? What about the illegible agreement and the lack of response to the CRP 31.14 request?

E. No, No, No

F. My Name. All facts

G. One day selected. Also added dates when unavailable in appropriate box.

I. Amend the defence.

 

I would appreciate any help with filling this in and proposed directions if necessary.

 

Thanks.

[AndyOrch]

" D1. Yes (application to set aside order to lift stay - no hearing date yet) "

 

Have they enclosed their directions Duo?

[Duo]

" D1. Yes (application to set aside order to lift stay - no hearing date yet) "

 

If an order is made without notice you have a window during which you can request that the order be set aside (if you have good reason). The order to lift the stay and issue Directions Questionnaires was made without notice so I made an application to set it aside.

 

Have they enclosed their directions Duo?

 

No, no directions from them. They say that they haven't filed any with the Questionnaire but that they would ask for standard directions if the settlement discussions were to fail.

[AndyOrch]

If an order is made without notice you have a window during which you can request that the order be set aside (if you have good reason). The order to lift the stay and issue Directions Questionnaires was made without notice so I made an application to set it aside.

 

Some applications are made without notice...Your application will be disregarded...wish you had asked advice first.

 

 

No, no directions from them. They say that they haven't filed any with the Questionnaire but that they would ask for standard directions if the settlement discussions were to fail.

 

Both parties are expected to issue directions in Fast Track ...standard directions are for Small Claims Track

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part28/pd_part28

 

Regards

 

Andy

[Duo]

Thanks andy.

 

I have made progress on a settlement but I would like the order formulated in such a way that the courts don't show a judgement on their records and I also wanted to have the debt deleted from the credit file.

 

I was thinking of having a clause in the Order requiring that the case be discontinued once payment is made (single payment) and also a confidentiality clause.

 

However if the claim is discontinued won't it then no longer be possible to enforce the confidentiality clause?

 

Would the agreement and payment be seen as an admittance of liability or as a settlement to prevent further legal action?

 

Would this kind of thing normally be done with a Tomlin Order or a Consent Order?

 

Are there any templates / set clauses which should be in such agreements to prevent the remaining debt being pursued later, sold on, returned to the original credit card company, etc.

 

Lots of questions, I know, but I think I'm almost at the end of this.

[AndyOrch]

Are you paying the total amount as required by the claim ...inc costs ?

[Duo]

Are you paying the total amount as required by the claim ...inc costs ?

 

No. Much less.

[Duo]

BTW I probably don't really need a confidentiality clause, I just want to get them to remove the default from the credit file, which may well require them to remove the entire line item and this may be one way to do that.

[AndyOrch]

Okay well a standard Tomlin Order can be drafted to cover your requirements..

 

Its important to that the schedule includes reference to full and final settlement and that no others claims will be made in connection to this agreement

With regards to credit markers...that's a different matter and will be at the discretion of the claimant...who must act within the guidelines of the ICO and the DPA.

 

Most Tomlins or Consents are usually subject to a confidentiality clause.

 

Andy

[Duo]

Okay well a standard Tomlin Order can be drafted to cover your requirements..

 

Its important to that the schedule includes reference to full and final settlement and that no others claims will be made in connection to this agreement

With regards to credit markers...that's a different matter and will be at the discretion of the claimant...who must act within the guidelines of the ICO and the DPA.

 

Most Tomlins or Consents are usually subject to a confidentiality clause.

 

Andy

 

Thanks Andy.

 

Will there be an issue enforcing clauses of the agreement if the claim has been discontinued or will the clauses stand as a contract?

[AndyOrch]

It will stand as per the Order

[Duo]

It will stand as per the Order

 

Thanks Andy.