Unviversal Credit CCJ, Sold to paragon , now Arrows and restons

[master woody]

how many attempts are you allowed?

 

1 and they have had it. WE both need to know after they have had the one chance how do you get it thrown out......again

 

the point the **** could just keep you in litergation for ever or until they got the result they wanted.

[stephen7]

 

I would consider making a Application with the above reasons and history of the claim to be struck out downside is it will cost you £75.00

 

Regards

 

Andy

would be worth it, if it finally gets them off my back.

but, if, as you say, being struck out doesn't necessary mean they can't keep coming back,what would be the point?

[stephen7]

1 and they have had it. WE both need to know after they have had the one chance how do you get it thrown out......again

 

the point the **** could just keep you in litergation for ever or until they got the result they wanted.

looks like once is not enough and they could keep you in litigation till they eventually get what they want

[surfaceagentx20]

Here's my take on the situation.

 

The poor critters evidently have yet to hear about something called res judicata, which encompasses issue estoppel, cause of action estoppel and merger. I'll explain all this in a minute.

 

In any case, by an order of the court, a claim between the same parties over subject matter which I understand is similar or identical to the subject matter of the recently issued proceedings, was struck out by order of the court. That order was evidently, not appealed and therfore remains the order of the court in relation to the issue.

 

The basis of the doctrine as it applies to issue or cause of action estoppel involves the policy which favours the benefit of finality, the sanctity of decisions of the court and the avoidance of the risk that courts may issue contradictory decisions. It was neatly set out in the speech of Lord Goff in Republic of India v India Steamship Co Limited [1993] where he said:

 

“…the cause of action, having become merged in the judgement, ceases to exist, as it is expressed in the Latin maxim transit in rem judicatem…”

 

Here lies the distinction between the availability of a second action where the Claimant falls on his sword by discontinuing his claim (and where the claimant wishing to bring a second action satsfies certain conditions) and an order for strike out. The former will involve no judicial decision on the merits whereas the latter often will. I'll deal with the situation where it doesn't shortly. Evidently, the Judge who struck out the first claim decided either there was no merit in the claim, or prospect of success or possibly, that owing to contumelious disobedience of one or more orders of the court, the claimant was undeserving of having the claim progress to trial.

 

It will be necessary to be satisfied that the first and second claims represent litigation over the same subject matter and for the purpose it will be necessary to see the Particulars of Claim of both first and second proceedings. Assuming the second claim mirrors the first, the proper thing to do is to submit a Defence pleading all that may be available by way of defence (there may be an issue over the default notice I gather) plus a plea of res judicata and that the cause of action now relied upon merged with the order striking out the claim which was not appealed and remains the decision of the court on the set of facts forming the second claim.

 

Having served the defence I would then be inclined to make an application under CPR 24 for summary judgment on the basis the Claimant has no reasonable prospect of success owing to issue and cause of action estoppel etc.

 

As fpr any contention from the Claimant that the decision to strike out did not involve a decision on the merits, I would maintain the court has the power to strike out the second action as an abuse of process under CPR 3.4 (mentioned in CPR 24) where unmeritorious proceedings are begun such as this second action. The basis underlying the abuse is that if for example, the first case was dismissed for failure to produce documents in obedience to an order of the court (implying the possibility the decision was not based upon the existence of merit in the claim itself) and the Claimant is now in possession of those documents which it would wish to employ in the second claim, so called 'extended' res judicata principles will apply in the sense that with due dilligence, the claimants would not have begun the first proceedings without first having possession of those documents and with due dilligence, the first set of proceedings were sufficiently available for the Claimant to litigate the issues.

 

I can help with the preparation of a Defence and an application for summary judgment if required.

 

Hope this is a useful pointer to you.

 

x20

[master woody]

perfect for me thanks!

[stephen7]

i think i have the jest of it.

the first claim was struck out as " having little chance of success"

i assume the documents were available at the time of the claim, after all, they easily got theem within 2 weeks of the claim being struck out.

i have applied for it to be struck out again, "as an abuse of the system".

this claim is the same as the first, they have altered the wording of the POC in this case.

i will phone the court tomorrow, they will have received my application by today, and let you know what they say. your offer of help is gratefully received, i have a feeling i will need all the help i can get.

thanks again

[stephen7]

In any case, by an order of the court, a claim between the same parties over subject matter which I understand is similar or identical to the subject matter of the recently issued proceedings, was struck out by order of the court. That order was evidently, not appealed and therfore remains the order of the court in relation to the issue.

just to cover this point, if they had appealed, i assume i would have been informed?

[stephen7]

hi all,

an update after speaking to the court today:

my application will not go before the judge until the end of the week/ beginning of next week.

was informred the judge has three options:

1. reject my application ( hope not)

2. request a formal application. ( which i would have to pay for)

3. accept my application and strick out the claim.

they also informed me it would be best to prepare my defence in case the application was rejected. i have until 18 november to return my defence ( they also hinted that it may be worth including in it, that the claim has already been struck out before).

i probably won't find out the result of my application, possibly until 6 november which would leave 12 days to enter my defence.( lots of help needed there) should be enough time i think.

steve

[master woody]

fingers crossed, I'll be watching

[pt2537]

In any case, by an order of the court, a claim between the same parties over subject matter which I understand is similar or identical to the subject matter of the recently issued proceedings, was struck out by order of the court. That order was evidently, not appealed and therfore remains the order of the court in relation to the issue.

just to cover this point, if they had appealed, i assume i would have been informed?

yes without question you would have been advised

[stephen7]

pt and woody,

thanks for the confirmation and your support,

will post the outcome next week

[stephen7]

hopefully it will be good news

[stephen7]

hi all,

just an update, spoke to the court today, no news. i'm afraid, the lady thought it may have gone away to be tyoed?

don't know what that means.

she also informed me i have until 20 nov. to file a defence.

will call them again tomorrow see if there is any news then

[Docman]

I believe the typing of orders in some county courts in the South East has been centralised with files are being sent to other towns. I rang my local court last week and the court manager was quite outspoken in his views. Apparently, the local courts have to wait for 2 or 3 weeks to get the files back during which they are effectively ‘blind’.

[stephen7]

I believe the typing of orders in some county courts in the South East has been centralised with files are being sent to other towns. I rang my local court last week and the court manager was quite outspoken in his views. Apparently, the local courts have to wait for 2 or 3 weeks to get the files back during which they are effectively ‘blind’.

thanks docman,

that explains it, question is, if they have to wait 2 - 3 weeks, do they extend our time limits, somehow i doubt it

[stephen7]

another update,

spoke to the court today again, my application for dismissal went before the district judge on 29 oct. the lady i spoke to couldn't/wouldn't tell me the outcome of it. only to say that the reply has indeed been sent away to be typed. and i will hear from them in due course. as this could, as docman says take a couple of weeks, and i have to submit my defence by the 20 nov. in theory, the court case coud arrive before i hear about my application.

what would be the final date i could have before sending in my defence?

speaking of which, help is almost certainly needed regarding that

regards

[Docman]

Hi

 

I'm away for the weekend but limited access to CAG but I will have a look at the defence on Monday if no-one else has posted by then.

Doc

[stephen7]

thanks docman,

have a good weekend

[Docman]

Hi Stephen

 

I've had a re-read of your thread and also your original thread. You have been in the wars with Arrow. When will these people give up?

 

I think your defence should be as your original plus the res judicia argument that surfaceagent x20 mentioned. I think you have posted up enough details to start drafting that part of the defence.

 

In addition to the DN line, don't forget they need to show a valid NOA. In other words the claimant has to show

1. That there was a valid agreement (CCA)

2. That there was a valid defailt notice (Doesn't appear to be the case)

3. That the claimant is a party to the agreement or has a valid title to the claim (NOA).

 

Can you post up the amended POC. We will have to deal with every point that they have listed. Can you also post up a copy of the CCA and NOA, if they sent one without your personal details?

 

The timeframe is tight here, not so much because of the court deadline but because of the result of your application. Who knows, the DJ may have already thrown out the case - I hope!

[stephen7]

hi docman,

sorry, wprking nights, so not much spare time at the moment.

here is the POC:

on the front page.:

brief details of claim.

the claimant's claim is for monies due from the defendants under an agreement made between the parties on 24 oct 1996.

the claimant also claims costs.

1. the defendant entered into a personnal agreement with universal credit ltd on thr 24 october 1996( "the said agreement") a copy of the agreement is attached with this claim form.

2. upon signing the said agreement the defendants agreed to repay the personnal loan of £xxxx.xx by way of 120 monthly instalments of £xx.xx.

3. the defendants have failed, neglected and/or refused to maintain the agreed monthly repayments.

4 the said agreement has expired as the final payment should have been made by the 24 oct 2006. hence there is no need to issue a default notice.

5. the defendants account was then assigned to to the claimant effective on the 30 november 2006. a letter of assignment notifying the defendant was given to the defendant on 14 december 2006.

6 since the date of assignment and at all material times therafter, the claimant has managed and serviced the defendants account. the claimant attaches a copy of the breakdown of the accountsince the inception of the agreement to date hereof giving the total balance due and owing from the defendant to tha claimant in the sum of £xxxx.xx

7. the claimant pleads that interest has stop accruing after the fourth december 2006. thus the balance outstanding on the 4 december 2006 is £xxxx.xx

8. the defendant last payment was made on 21 november 2007 for the sum of £xx.xx and the balance outstanding as the date thereof is £xxxx.xx.

the claimant claims the sum of £xxxx.xx plus costs.

 

that is it in a nutshell.

i have to go to work now but will post any other thing needed and a few questions/statements when i get home in the morning

thanks again

[surfaceagentx20]

Below is a form of Defence you may care to use or muck about with. It denies the agreement was properly executed or if properly executed is now enforceable on grounds of either [1] Limitation Act 1980 (although I appreciate a Reply will say the limitation period has been extended under section 27 of that Act) [2] inadequcy of assignment (I gather the route is Univeral to Paragon to Arrow which route is not expressly pleaded) and [3] res judicata, adding for good measure that the claim incorporates penalties etc. I have included a denial that the Claimant never once sought to terminate etc since it seems to me highly unlikely that never once during the ten years the agreement ran did a creditor once try to exercise that creditor's rights.

 

The biggest bite is plainly the plea of res judicata.

 

Draft / Defence

 

1 The Defendants deny the general indorsement that the claim herein is one which arises by means of an agreement between the parties.

 

2 In or about October 1996 the Defendants entered into an agreement with Universal Credit Limited (UCL) and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the extent to which UCL and/or the Claimant may have complied therewith and save where expressly admitted, the extent to which the Defendants may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

3 The Defendants admit that during the currency of the agreement they defaulted in the making of one or more of the 120 monthly instalments and [that pursuant to the terms of the agreement], the default was one which thereupon vested in UCL a right to demand or cause to be demanded, the immediate repayment of the entire balance of the loan then outstanding.

 

4 This case was issued by the Claimant on (date) and the Defendants avers that the right vested in UCL to demand the immediate repayment of the entire balance of the loan then outstanding was a right which had accrued in excess of 6 years prior thereto and that in consequence the Claimant's claim is now barred by reason of Limitation Act 1980 section 5. Further and alternatively, the Defendants aver that any right to interest upon any principal sum owing ran simultaneously to the right to the principal debt and the Defendants adopt the Claimant's plea that the right thereto ceased on 4 December 2006.

 

5 Further, it is denied if it be alleged, that at no time during the period exceeding six years and immediately following the Defendants' default referred to at paragraph 3 hereof, did the Claimant serve or purport to serve a notice intending the same to meet the requirements of Consumer Credit Act 1974 section 87(1), nor terminate the said agreement, nor otherwise demand the immediate repayment of the entire balance of the loan then outstanding or any part thereof.

 

6 Incorporated within the sums demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendants. Alternatively, the Defendants aver the incorporation of such claims is penal and unenforceable at law.

 

7 No admissions are made as to the terms, conditions or other provisions of the assignment alleged to have been made between the Claimant and UCL. Further, if by the assignment alleged the Claimant acquired from UCL an interest in the agreement admitted at paragraph 2 hereof, notice was not given to either Defendant of the Claimant's acquisition thereof.

 

8 Further and without prejudice to the gerality of the foregoing, on 22 November 2007 the Claimant commenced proceedings out of the St Albans County Court [short title: (name) Claimant v (name) Defendants case number (case number)] for the same or substantially the same relief and on the same or substantially the same set of facts as are contained in the Particulars of Claim (the earlier case).

 

9 The Claimant's earlier case was considered and decided on merit and by an order of Deputy District Judge (name of Judge) sitting at St Albans County Court on (date) the Claimant's earlier case was ordered to be and was struck out as showing no reasonable prospect of success.

 

10 The Claimant failed or elected to not appeal the said decision whereuon the decision became the final decision of the court upon the facts of the earlier case. In the circumstances the Claimant is now estopped from asserting a right to the relief sought by this claim.

 

11 In the circumstances the Claimant’s claim to be entitled to £x,xxx.xx or any other relief is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

Signed: D1 D2

Dated:

 

Any queries, just yell.

 

x20

[stephen7]

x20,

thank you,

can i just raise/emphasise some points that may./may not be relevant.

the route is as you said, with cbs transcom and black and white ( who wanted me to re-mortgage my house to pay it off) thrown in for good measure.

the amounts claimed are varying depending on which part of the claim is read, even though they have stated that interest had been stopped on 4th dec 2006. ( this had been agreed with UCL, as well as a reduced payment plan, way back in 1998 anyway, though paragon still charged it)

so would it be better to omit your para 3?

i know that is a moral rather than a legal issue, so probably is not relevant anyway.

does the limitations apply due to my continually making payments until nov 07?

just want to make sure.

thanks again

[stephen7]

also forgot to ask,

can someone point me in the direction of the link to the defence form?

[stephen7]

right, i have copied x20's defence, which i thank you for, will post it off tomorrow,

am i correct in assuming i have to fill in an AQ to accompnay the defence, as i did before?

[AndyOrch]

Hi Stephen

 

Disregard posted in error

 

 

Regards

 

Andy