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Hi,

I received a claim from Restons solicitors in Jun 2017 from a debt that was from 2003.

They have continued to chase and issued a court claim against me on 19th June.

 

The debt is statute barred although they say a payment was received on 11th July

 

I have bank statements and copy of credit file to confirm that this is not the case.

They have repeatedly asked me to withdraw my defence, which I havent.

 

I have gone through the process of asking for default notices, copy of agreement, NOA etc for which they have only supplied a copy of the agreement and a list of transactions with a date and amount on them only.

 

The claim became stayed in July last year after i entered a plea of statute barred.

 

I have now received notification that they are asking the court to lift the stay and strike out my defence.

 

I have drafted a defence statement addressing the main points including providing the evidence I have as well as calling into question whether they even had a right to commence legal proceedings as they kindly sent me a letter 5 weeks after they issued the claim saying that they had to refer back to their client and obtain relevant documentation before commencing further.

 

I have 2 questions off the top of my head;

 

1) They continue to say that no hearing will be required and that summary judgement will be requested, can they do this.

 

Would I not be given the opportunity to submit my defence statement and evidence to the court if they decide to lift the stay?

 

Or should I enter an N244 STRIKE OUT of claim myself now?

 

2) If they admit to not having the information before starting court action

does this not constitute to an abuse of court process?

 

They have said that I am unable to highlight anything further to the court as I originally entered a defence of statute barred only.

 

They had not even sent me a copy of the agreement at this point.

 

Any help would be great as I am losing significant amounts of sleep over this but I will not let them win.

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Its still statute barred whatever they do,

they will have to pay to lift the stay

and they will only do that if they can prove you made the july payment,

if they could they would have done so by now.

 

An N244 to strike out the claim will cost you in court fees that you wont get back so i wouldnt recommend that either


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moved to legal

 

can you complete this please

https://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**(1-Viewing)-nbsp

 

and post up the defence you filed too.

 

also did rectums include an N244 with the strikeout claim

or is it purely one of their typical willy waving letters without any N244 form nor copies of the required paperwork?


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, the whole DCA industry would collapse overnight.

 

 

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Seems to be their latest tact.... we have had quite a lot over the last few months......and there will be a hearing.....along with the above if you could upload their witness statement (redacted) in support of their application.

 

You will have to draft your own witness statement in response with objections to their application...this must be filed and served not less than 7 days pre hearing ( have you received notification from the court re their application ?)

 

Andy


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May thanks for the response, its a bit war and peace unfortuntely. They issued me with a N244 form and a wad of paperwork which was supposedly from years ago. No claims that I acknoweldged the debt at any point. To be honest, it was from 2003 and I had no recollection about the amount they claim. although looking at the agreement it does appear to be my signature.

 

Name of the Claimant ?

Marlin Europe I Limited

Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to.

19th June

 

What is the claim for – the reason they have issued the claim? The claimant claims payment of the overdue balance from the defendant(s) under a contract between the defendant(s) and Marks and Spencer Financial Services Plc dated on or about Aug 01 2003 and assigned to the Claimant on Nov 01 2012

 

Particulars A/C xxxxxxxxxxxx

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ?

They notified me in May they were looking to take court action. I disputed the debt and asked them to provide a copy of the agreement and payments made prior to them commencing.

 

What is the value of the claim?

 

£8,742.24

 

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account?

 

Personal Loan

 

When did you enter into the original agreement before or after 2007?

 

2003 apparently although I have no recollection of the agreement.

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.

 

Debt purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment?

 

No and never recieved anything about this but it has miraculously appeared as part of their defence statement and evidence. No date on it though.

 

Did you receive a Default Notice from the original creditor?

 

Not to my knowledge and I have requested this which they have not provided

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

 

No

 

Why did you cease payments?

 

Lost my job

 

What was the date of your last payment?

 

18th May 2011

 

Was there a dispute with the original creditor that remains unresolved?

 

No dispute as it was so long ago I had no idea

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan.

 

Yes and they sold the debt on after i stopped paying the debt management company i used also went out of business and stopped trading in 2004.

 

The Defence Rectums have entered was;

 

The claim in this action is for monies outstanding under a loan facility issued pursuant to a credit Agreement. between Marks & Spencer Financial Services Plc and the defendant dated on or about 01 August 2003. The credit agreement was allocated an account number and was regulated by the consumer credit act 1974. Exhibited to this witness statement is a copy of the credit agreement signed by the defendant on 31 July 2003, together with the Terms and Conditions embodied in the credit agreement.

 

In accordance with its contractual entitlement, Marks & Spencer Financial services Plc assigned its rights and duties under the account to the claimant, Marlin Europe I Ltd. Exhibited to this witness statement at CES2 is a reconstituted copy of the notice of assignement served on the defendant and notice of the same served on the defendant by the original creditor. Also exhibited at CES2 are copies of historic correspondance sent to the defendant including periodic notices of sums in arrears.

 

Exhibited to this witness statement at CES3 are copies of the statements of transactions showing credits and debits applied tot he account between 02 August 2003 and 13 July 2011.

 

I confirm I have read the defence filed by the defendant whereby it is alleged that;-

 

The debt is statute barred

 

The defendant requestes evidence of a payment made in or around July 2011 and a copy of the original credit agreement.

 

The defendant states that they have raised a complaint to the financial ombudnsamn

 

6. I confirm I have checked my case managament system which contemporaneously records all incoming and outgoing telephone calls and correspondance since my firm was instructed on 04 May 2017. This system records that;-

 

(i) a letter before action dated 05 may 2017 was sent to the defendant in compliance with the practice direction.

 

(ii) The defendant responded and correspondance was subsequently exchanged with my firm.

 

(iii) As no resolution was reached, proceedings were issued against the defendant on 19th June 2017 for an outstanding balance of xxxxxx together with a claim fee of £410.00 and fixed costs of £100.00. The proceedings were served on the defendant.

 

(iv) The particulars of claim contain sufficient information for the defendant to understand what the claim relates to, namely;

 

a) the date the account was opened

b) the account number

c) the outstanding balance

d) the name of the original creditor; and

e) the fact that the account has been assigned to the claimant.

 

(v) Since being served with a copy of the defence, my firm has written to the defendant on a number of occasions, including instances whereby my firm provided the defendant with documentation relating to the account and which is exhibited in this witness statement.

 

7> in my respoctful submission, the defence should not succeed because;-

 

(i) The defendant does not dispute signing the credit agreement, being provided with a loan or the fact that the loan has not been paid.

 

(ii) Throughout the lifeime of the account, the defendant would have been sent annual statements of account by the oriignal creditor which would have recorded payments made towards the account and the application of contractual interest charges, as well as confirming the outstanding balance.

 

(iii) the defendant does not allege that he is still being pursued for this debt by the original creditor and hence there is no sensible reason for the defendant to challenge the assignment of this account

 

(iv) The information provided to my firm is that the last payment credited to the account was on 13 July 2011 and that a balance of xxxxx remained outstanding at the time my firm were instructed. This has been evidenced in exhibit CES3 and disproves the defendants assertion that this debt is statute barred since legal proceedings were instigated against the defendant within 6 years of said payment.

 

(v) The credit agreement and evidence of payment made in or around July 2011, as requested by the defence, was supplied to the defendant by way of letter dated 04 July 2017, with the invitation to withdraw his defence. This can be found within the historical correspondance at CES2. The defendant replied that he was still of the opinion that the debt was statute barred and has provided no such reasoning for this belief.

 

(vi) It is noted that the defendant alleges that he has made a complaint to the financial ombudsman. It is respectfully submitted that my firm has never recieved any evidence of such a complain being raised.

 

8. I acknowledge that these proceedings have been stayed since July 2017. Following receipt of the defence, my firm made the decision to allow the claim to become stayed automatically so that attempts could be made to obtain account documentation from the original creditor and to try to resolve matters amicably. However as those attempts have been unsuccesful I respofully ask the court to now lift the stay.

 

9. I also respectfully ask the court to strike out the defence on an ex-parte basis and to enter judgement in accordance with the request attached to this witness statement. I respectfullt ask the court to award those costs on the basis that;

 

(i) the defendant has been given numerous opportunities to withdraw the defence previosuly filed, but has not done so, and

 

(ii) the costs sought, are in my respectful submission, reasonable and proportionate.

 

10. If the court is not minded to deal with this application on an ex-parte basis then I respectfully request that the applciation be listed for a hearing with a time estimate of 40 minutes and that the application be treated as an application;

 

(i) to lift the stay on these proceedings; and

(ii) to strike out the defence; or

(iii) for sumarry judgement; and

(iv) for an order that the defendant do pay the claimant's costs on a contractual basis, pursuant to CPR 44.5

 

Thats the witness statement by Rectums but there are so many things in this I do not agree with. I originally pleaded that I have no knowledge of this debt and that it is statute barred as i went back over my account for the time and could find no outgoing payments to original credit, Marlin, cabot or anyone else for that matter. I had been involved in letter tennis with them since May asking for proof of the transactions and a copy of the agreement which did not arrive until almost 3 weeks after they started court proceedings. I also have bank statements and credit reports that clearly show no account nor payments made in or around July however to be safe I have prepared bank transactions from begining of June until the end of July for the court.

 

The list of transactions they have supplied is a one page document that looks like my 9 year old had put together o excel. Badly pasted M&S Bank logo, the title being for 'creditcard transactions' and then a list of payments with date and amount. no account details etc.

 

I have been pulling together my witness statement over the past few months as i suspected that it might get to this and am happy to paste it up here. I believe that the debt is statute barred and the surely they have also abused court process if they have started a claim that they admit to not having the required paperwork prior to commencing.

 

Any help woudl be greatly appreciated, this caused me to have a stress disorder last year with the constant hounding and threats and I'd rather not have to go through that again.

 

 

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read upload

and scan up all what they have sent please to ONE multipage PDF


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, the whole DCA industry would collapse overnight.

 

 

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At 6(ii) in the WS there is mention if an exchange if correspondence, did you acknowledge the debt in writing at this time? That would kill your SB defence if you did.

Acknowledging in writing is as bad as a payment when it comes to the 6 yr rule.

 

So, if your last payment or acknowledgement was 18/5/2011 then its SB

 

If your last payment or acknowledgment was after 19/6/2011 then your SB defence is dead in the water

Edited by martin2006

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 

I am not legally trained or qualified, any advice i offer is gleaned from experience and general knowledge, if you are still unsure after receiving advice please seek legal advice.

 

 

 

GEMHL Settled

Barclaycard Settled

A & L SETTLED IN FULL :lol:

Spml Reluctantly withdrawn

Blackhorse pre 31-7-06 Demand removal sent 23 8 06. ICO ordered removal jan 2007....REMOVED:lol:

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have they indicated how much was paid towards the account in july 2011?

 

They commonly use the £1 CCA statutory fee when they know this is unlawful.

 

Also they often misassign monies or sometimes claim that your aunty Maud paid them a fiver so that menas that you have paid.

 

Of course, none of this stops the SB clock but you will need the info to show that they are flying a kite

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