Arrows/Restons stayed Claim M+S credit card debt - Application to lift Stay

[Phantom943]

A little long winded im afraid but to try and keep this concise.

 

Other half opened a M&S account in September 1989.

 

The last payment via Pay Plan was made in July 2011.

 

Nothing heard until we received a letter from Restons acting for Global Arrow asking for payment of some £2k in September 2016.

 

Followed by a county court claim issued via Northampton in October 2016.

 

Particualrs of claim are:

Dated 21/10/2016.

Particulars of Claim:

1.The claimant claims payment of the overdue balance due from the Defendant(s) and Marks and Spencer Financial Services Plc dated on or about October 14th 1989 and assigned to the claimant on Feb 21 2013.

 

Particulars a/c no - xxxxxxxxxxxxxxxxxxxx

Date 12/09/2016. Default Balance £2xxx.xx

 

Claim was acknowldged within time and option to defend all the claim.

 

The day after the claim was issued CCA request along with payment and CPR request were made.

 

All correspondance returned with Restons using the excuse they are solicitors not the creditor.

 

The claim was defended on the basis no defence could be entered as there was a lack of documentation to back up the claimants claim and none were included in the claim.

 

There was a brief spell of letter exchanges as we resubmitted the CCA aand CPR requests which were returned and the usual unsigned letters debacle etc took place.

 

Nothing else happened until May this year

when they sent in the post

a copy of the original application,

a print out of payments and

Terms and Conditions they claim were applicable in 2011,

and again demanding payment.

 

Today we recieve quite a hefty bundle from them where effectively they are apparently applying to the court:

"We enclose by way of service a copy of our Application Notice and supporting evidence which has been filed with the court today.

We have asked the court to deal with the Application without a hearing as we do not consider a hearing is necessary.

 

Once this has been referred to a judge, he or she should then either make an Order in the terms requested or they may decide that the application needs to be considered at a hearing.

 

eEther way, you should receive an Order from the Court in due course which confirms the decision made.

 

They have enclosed N244 Application Notice dated 06/09/2017.

 

Also included is a witness statement of some 5 pages. copies of letters and their costs which total some £900.

 

Im trying to get my head around how they can still be in time with this as its some 11 months since they issued the claim,

that they are saying was stayed

 

although we have heard absolutely nothing from the court to this effect.

 

Any suggestion on how we deal with this as its a new one on me.

 

Many thanks.

[AndyOrch]

Thread moved to Financial Legal Issues...please continue to post here to your thread.

 

Who is the claimant ?

 

The court do not inform you its stayed...it explains that in your acknowledgement of your defence.

 

We have seen Stayed claims resurrected 2/3/ years after...your is only 11 months.

 

Is their application simply requesting to lift the stay or/also strike out/summary judgment ?

 

Regards

 

Andy

[Phantom943]

They are requesting strike out defence

judgement plus costs and any new allegations they will ask for a adjournment plus costs.

 

 

looks they are after a judgement in their favour without having to be challenged

[AndyOrch]

No mention of " Summary Judgment "?

 

Again ...Who is the claimant ?

[dx100uk]

so paperwork only hearing which you object too I expect

 

have the court sent anything?

 

until they do you can take restons willy waving with a pinch of salt

[Phantom943]

The Clainant is Arrow Global.

 

Since the claim was issued the only thing from the court was acknowledgement that defence was entered.

 

As previously stated,

i submitted i could not enter a defence as i had no documentation other than the claim form at that time.

The N244 says.

 

3. What order are you asking the court to make and why?

 

" An ex-parte Order to:

Lift the stay on these proceedings; and

Strike out the defence pursuant to CPR 3.4(2) of the civil proceedings rules on the basis that it discloses no reasonable grounds for defending the claim and or is an abuse of the court process; and

Enter Judgement for the sum of £3k+

Edited September 8, 2017 by Phantom943

[dx100uk]

so you entered an old embarrassed defence?

[AndyOrch]

The Clainant is Arrow Global.

Since the claim was issued the only thing from the court was acknowledgement that defence was entered.

As previously stated, i submitted i could not enter a defence as i had no documentation other than the claim form at that time.

The N244 says.

 

3. What order are you asking the court to make and why?

 

" An ex-parte Order to:

Lift the stay on these proceedings; and

Strike out the defence pursuant to CPR 3.4(2) of the civil proceedings rules on the basis that it discloses no reasonable grounds for defending the claim and or is an abuse of the court process; and

Enter Judgement for the sum of £3k+

 

Is there no witness statement in support of their application?...they cant just ask the court to do the above without reason otherwise there would be no need for any of the judicial process.

[Phantom943]

Heres the copy of the original 1989 application form.

 

A copy of the "Assignment" documents:

 

Hopefully this has worked

 

this should contain all the relevent documents other than the claim form.

 

For the purposes of clarity

the documents that Restons say are statements have been blanked out.

 

Any advice on how to proceed with this going forward would be most welcome as i am at a loss as to what to do next.

Many thanks.

WS .pdf

[AndyOrch]

Now you wait until the court advises you of the hearing...there will be a hearing.... I really do not understand why Restons keep requesting an ex parte order without hearing to strike out/summary judgment

 

Once you have a date to work to you will have to submit a witness statement in opposition to their application with reasons..this must be submitted and serevd not less than 14 days pre hearing.

 

 

Andy

[dx100uk]

ws sorted above

[Phantom943]

Received yesterday from our local county court notice of a hearing date: 15/12/2017.

The hearing has been allocated 45 minutes.

I now need to consider what if anything i add to the embarrassed defence given that they have since provided some but not all of the information requested.

Many thanks.

[dx100uk]

no as post 10

[Phantom943]

Can anyone offer any advice or pointers as to the content of the witness statrement.

I have had a look at a number of other threads and successfully managed to totally confuse myself.

Many thanks.

[dx100uk]

shame you filed an out of dated embarrassed defence

 

can we see it please

use their WS/exhibits and pull it apart.

like its an application form that doesn't appear to meet all prescribed terms under cca 1974

there is no default notice either?

[Phantom943]

Maany thanks.

Post 9 has the attached witness statement which begins at page four of the pdf.

 

No default notice has been received, nor produced as part of their bundle.

Edited November 28, 2017 by Phantom943
Typo

[dx100uk]

off you go then

lots of witness statements already here

use the search cag box of the top red toolbar

[Phantom943]

Good evening all.

Not entirely sure that this is sufficient but this is my attempt at collating what i thibk is relevent from other witness staements, please feel free to comment accordingly.

For ease the claimants documents are in a PDF in post 9.

 

I do have a few questions that im not sure are worth adding to the statement.

 

1. PPI appears to have played some part in this although it appears that less than a dozen payments were which were less than the minimum payment were made against the account, is there any relevence in this?

 

2. Restons refused to deal with the CPR and Sect 78 requests on three occcassions, initially claiming they wouldnt deal with an unsigned letter, then they were solicitors and wouldnt process the request, thought the claim and indeed the purported notice of assignemnet both statre all should be dealt with by Restons, are there implications that can be used in this regard?

 

3. What they say is a notice of assignment is actually titled notification of account transfer to new agency, issued in 2013 we saw this fir the first time in 2016, is there anything in this that can be used?

 

4. They say they have provided staements of all transactions, they have included two differently formatted docuents that show essentially some credits and ebits bearing the Logo of M&S Bank not M&S Financial services, i seem to remember reading something about a change of card and possible issues, is this relevent in any way?

 

The County Court noticiation does not mention the production of witness statements or any time scale,

Restons in their application say at lest 7 days before the hearing,

im aware of a 14 day rule so do i go for seven or forteen days?

 

Here is the cut and paste witness statement i have put together:

 

IN THE xxxxxxxxx COUNTY COURT

Claim No. xxxxxxxx

 

BETWEEN:

Claimant

Arrow Global Ltd

 

AND

Defendant

xxxxxxxxxx

 

_________________________ ________

 

WITNESS STATEMENT OF xxxxxxx

_________________________ ________

 

 

 

I xxxxxxxxxx being the Defendant in this case will state as follows; I make this Witness Statement to oppose the claimant’s application for Strike Out/Summary Judgment in view of my defence submitted to the claim dated 11/08/2016 pursuant to CPR 24.5 (1) a&b.

 

1. The claimant’s witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

 

2.It is my understanding that the claimant is an Assignee, a buyer of defunct disputed or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed ...10p to 15p in the £1 and which the original creditors have already wrote off as a capital loss and claimed against taxable income. Then issues claim to circumvent and claim the full amount of debt to maximise profit.

 

3. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

The Background

 

4. Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and Marks & Spencer Financial Services Plc. On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity by way of a section 78 request.

At the time of submitting my defence the claimant was in default of this request and refused to comply with this request and was therefore unable to proceed and enforce the claim or request any relief.

The claimant is put to strict proof to verify and confirm that the exhibit at paragraph 2 marked CGQ2 are the true terms and conditions as issued at the time of inception and execution of the agreement.

 

5. Contained within the claimants’ correspondence dated 22 November 2016 submitted as an exhibit “CGQ3” within its witness statement the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice “would have” been served upon the defendant pursuant to S.87(1) CCA. The claimant provides no proof of such pursuant to section 87(1) of the CCA1974. It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87(1). Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement.

 

The claimant is put to strict proof to further evidence and verify the service of the above.

 

6. Paragraph 3 is noted and partially addressed at my point 2. Referring to its business as charged off debts may be one description. The claimants state the debt was assigned to its claimant on or around the 21st February 2013 and confirms that a Notice of Assignment was sent 13th September 2016 some forty-six months later.

 

It confirms that a reconstituted version is relied upon at exhibit CGQ3. Pursuant to the Law of Property Act 1925 there is no reference to reconstituted versions of Notice of Assignments but what equates to a valid Notice with its prescribed terms and inclusions for the assignment to be valid. A reconstituted version is not proof that it was ever served or the assignment was valid.

The claimant is put to strict proof to evidence further the Notice of Assignment is a true copy or possibly disclose the Deed of Assignment as to verify its authenticity.

 

7. Paragraphs 4 is noted token payments were made by a third-party agency but are not an acceptance of any liability of the debt or assignment.

 

8. Paragraph 6 is accepted in that a claim was issued some 3 ½ yearsafter the purported assignment to which a defence was submitted along with requests for documents vis a CPR 31.14 and section 78 of the CCA1974.

 

Stay of Proceedings

 

9. Paragraph 8 is noted but unfounded and misleading to the court. The claimant misleads the court in its reasons. The reasons for the stay are explained above and has to why. They were not in a position to proceed because they could not disclose any agreement or further documents. Therefore, the request to lift the stay should be denied as the above is not a true or accurate reason or occurrence of events.

 

Application to strike out/Summary Judgment

 

10. Paragraph 9 should be denied. I believe I have every opportunity in defending this claim successfully and it should be allowed to proceed to trial. The claimant is put to strict proof to respond as to why it presumes my defence has no reasonable grounds for defending given that all its exhibits are questionable or invalid with the current legislation.

 

Paragraph 2 the claimant refers to exhibit CGQ1 which they refer to as a true copy of the executed agreement. It is averred that the disclosure purports to no more than an application form a pre-executed application form which is deficient of the prescribed terms.

 

This renders the exhibit as unenforceable pursuant to section 127 (1) & (2) of the CCA1974 as the alleged date of the agreement is dated 14th October 1989 and the amendments of the CCA2006 are not retrospective to agreements entered into pre-April 2007.

 

 

Conclusion

 

11. Having regard to the above it is respectfully requested that the claimant’s application is denied and the application for strike out/summary judgment is dismissed. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial.

 

 

 

Statement of Truth

 

I, xxxxxxxx the Defendant, believe the facts stated within this Witness Statement to be true.

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

[AndyOrch]

1. PPIicon appears to have played some part in this although it appears that less than a dozen payments were which were less than the minimum payment were made against the account, is there any relevence in this?No ...PPI is irrelevant to the claim and can only be dealt with by M&S

 

2. Restons refused to deal with the CPR and Sect 78 requests on three occcassions, initially claiming they wouldnt deal with an unsigned letter, then they were solicitors and wouldnt process the request, thought the claim and indeed the purported notice of assignemnet both statre all should be dealt with by Restons, are there implications that can be used in this regard?

 

Dont really understand the question...but if they are in default of a section 78 request then that is priority number 1 of your witness statement

 

3. What they say is a notice of assignment is actually titled notification of account transfer to new agency, issued in 2013 we saw this fir the first time in 2016, is there anything in this that can be used?

 

You can only state that you didn't receive it and if what they disclosed in 2016 is invalid..point out its deficiencies

 

4. They say they have provided staements of all transactions, they have included two differently formatted docuents that show essentially some credits and ebits bearing the Logo of M&S Bank not M&S Financial services, i seem to remember reading something about a change of card and possible issues, is this relevent in any way?

 

Yes if the statements are in connection to a different account and not the agreement the claim is based on

 

The county courticon noticiation does not mention the production of witness statements or any time scale, Restons in their application say at lest 7 days before the hearing, im aware of a 14 day rule so do i go for seven or forteen days?Normally 7 for this type of application...you notice of Hearing should confirm the timescale.

 

Andy

[Phantom943]

The hearing due tomorrow morning,

i received this in the post today dated 12/12/2017.

 

i havent scanned the last page as its the signature etc.

 

They have also attached another Costs Schedule in excess of £1600.

 

A second statement that essentially gives their take on the above statement.

 

I dont know enough about the technicalities to challenge them on some of thier responses

in particualr the issue over what is a credit agreement and what is an application form.

 

If someone could take a look at this and provide any last minute advice i would be grateful.

REST2.PDF

[AndyOrch]

You need to inform the court you only received that today..less than 24 hours pre hearing and ask it be inadmissible.Supplemental witness statement should be filed and served not less than 3 days before a hearing.

[dx100uk]

iii. a cca request does not need to be signed for obv reasons. the £1 being made to them or their client is irrelevent really.

 

iv. you asked for the T&C's at the time of the inception - not when terminated some XX yrs later

 

vii so still no notice of assignment

 

viii/ but they must still prove you authorised these payments.

 

x/ but its still an application form devoid of the required precribed terms it must have within its 4 corners regardless to it it being signed asking to approve the application.

 

anything else they mention is mere smoke and mirrors designed to divert attention away from the above facts.

[Phantom943]

Many thanks for the replies, very helpful.

I will update after the hearing tomorrow.

Thanks again genuinely appreciated

[Phantom943]

Update:

Over booked court list which resulted in a very very short hearing over what should of been lunch break.

 

Judge made it clear he didnt want to spend very long on this and gave each parrty five mins max to have their say.

 

Restons (im assuming agent) took the usual line

theres a credit agreement,

failed to pay and

wanted defence struck out and summary judgement etc.

 

Judge was desperate to get rid of this

informs me i havent produced a substansive defence

and he has to ask if i have one

and therefore would it be worth allocating to small claims court.

 

I wasnt about to be put off by what was a glaringly obvious attempt to get me to say game over,

went for the unenforceable credit agreement,

not the full agreement

as what was provided was a poor scan that didnt include the full document and was barely legible.

Threw in non production of default notice, termination notice and allocation notice.

 

Restons not happy and claims they are avialble just that she didnt have them with her on the day, brwakign with protocol

i chipped in that they've been properly requested and should of been produced therefore no reason not to do so.

 

Outcome was their application was dismissed

and an order for Substasive defence to be filed by 5th Jan,

 

Restons by the 15th of Jan if they want to reply and allocation questionaires to be completed by early February.

 

I will struggle with the substasive dfence in part due to the lack of documents,

i suspect Restons if they do have them will wait for the defence to be issued

and then produce them or whatever they want to pass off as the required material.

 

They made a massive thing about costs,

the judge wasnt having any of it and has reserved costs.

 

So im going to be after some quite detailed help on this one please.

[dx100uk]

what the hell is a Substasive defence ???