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Tayen2

Mortimer Clarke application to lift Stay/Strike out/SJ/ for Capital One Debt

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Hello,

 

My husband has been sent an application notice of Mortimer Clarke applying to the court to lift a stay. 

 

I have been looking around the website to see an example of a letter that the court will send if/when they decide to lift it in order to see how to prepare an answer but I haven't found one yet.

 

I have added on the bundle of paperwork that they sent, I have noticed that the amount they say my husband owes is listed as one amount and then a few letters later it has increased by £50. From reading the site I believe I should perhaps mention that in a response when/if a letter is sent to lift the stay. I thought I should also mention that the credit agreement is reconstituted, but they have quoted case law that says they are allowed to give a reconstituted one, is that correct?

 

Also, my husband is really worried about losing and having a CCJ due to his community work and believes that he will not be able to state his case in court, so is wondering what the best thing he could do is.

 

Thank you for reading this, we really appreciate it and apologies for the PDF being so long.  I have to post the PDF in two different posts due to the Upload limit. I know that there is a way to shrink them, but my computer is a grumpy old one who likes to freeze often, so I have to post the second one in a reply to this first post. I am sorry for being annoying.. 

 

 

Merge1.pdf

PDF2...

Merge2.pdf

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The court will inform you of the hearing date to hear their application...and whether to allow your defence to be struck out and allow them Summary Judgment, once you have this date you can submit a statement of your in response to theirs attached to the application with your objections and reasons.....although their application will most probably be allowed to lift the stay...you are fighting to stop the strike out and Summary judgment.

 

Once you have a date you must submit your statement not less than 7 days pre hearing.

 

Thread title amended

 

Andy

 

 


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Okay, thank you..

 

.. So basically; just wait for the court letter.

 

Based on the documents above, do we have a chance to fight it do you think? 

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The hearing date then start to prepare your statement in response.

 

With regards to your chances I really dont know.....we dont know anything of the claim or your defence or the debt...thats like asking me what did i think of the book and you have only given me the last 3 chapters.

 

Please read the following link and then copy the Q,s and your responses back here for further advice.....and also a copy of your defence would be useful.

 

https://www.consumeractiongroup.co.uk/topic/357877-you-have-received-a-claim-what-you-need-to-do-updated-jan-2019/

 


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My apologies, Andy.. that was a silly question.. just anxious! :)

 

  

Name of the Claimant ?  Cabot Financial

 

Date of issue – This is an application to lift the stay after the original claim (Back in May/June 2017)
  
  
What is the total value of the claim? Originally £1,773.03  is now: £1823.03 (No explanation as to why)
  
Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC ( Pre Action Protocol) ? No
  
Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? Yes
  
Did you inform the claimant of your change of address? No - But have forwarded mail set up, although they sent to the correct address anyway.

 

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? Credit Card
  
When did you enter into the original agreement before or after April 2007 ? After
  
Do you recall how you entered into the agreement...On line /In branch/By post ? Online
  
Is the debt showing on your credit reference files (Experian/ Equifax /Etc...) ? Yes
  
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. Assigned and debt purchaser issuing
  
Were you aware the account had been assigned – did you receive a Notice of Assignment? Didn't recieve the notice until after the case was stayed- a year later
  
Did you receive a Default Notice from the original creditor? Not originally, was sent a copy after the case was stayed- a year later
  
Have you been receiving statutory notices headed “Notice of Sums in Arrears”  or " Notice of Arrears "– at least once a year ? No
  
Why did you cease payments? Wife was in hospital for a long period, had small children to look after, so had to take a break from work and hospital was quite a distance away so cost a lot in fuel with not working in that period. Plus the fees, fines, interest just went insane.
  

What was the date of your last payment? Don't recall, perhaps 2015
  
Was there a dispute with the original creditor that remains unresolved? No
  
Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan?No

 

 

This was all back in 2017. I had read this forum a lot, so had sent a CPR and CCA request back in June/July 2017. They didn't comply within the time frame and the case was stayed.. I had thought it was all over with, since it is over 2 years ago, but now we have been sent this application notice. 

 

The defence we submitted was on the court website and it was quite basic I am ashamed to say, it was:

 

"I do not recognise this debt, so I asked the claimant for a copy of any credit agreement with a statement of account and they did not supply one. I sent a request via recorded delivery and waited for 13-14 working days after they signed for it and they did not send this information or get in contact with me. "

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need a clear scan of pages 5+6 please pdf2

and where is the default notice from Cap1?


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Thank you for your reply.  Have taken better pictures of pages 5 and 6 from PDF2 and included the default notice that I somehow left out : /

 

 

Newinfo.pdf

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Thats not a default notice


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Oh, that is all of the things that they sent me..  I thought because it said default on it, that it counted.. the same as it mentions default on page 10  and page 12 on PDF1..

 

So that means that they haven't actually sent what they said then..

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ofcourse not

and that's not a compliant recon agreement either

 

interesting they repeatedly go on about you failing to complete an I&E sheet so they issued a claimform.. eh?

 

 


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Oh wow, thank you for your reply..  You have given me a few pointers for a response for when they lift the stay.   :)

 

-Non-compliant recon agreement, so they haven't fulfilled my (my husband's) request for the credit agreement.

 

- No compliant (?)  Default Notice

 

- They state they issued a claim for not filling in an I&E form, yet they still hadn't provided the requested information 

 

I know that is not the correct terminology, I will look around the website for the correct way to say it.

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Posted (edited)

My husband has been sent a court date for the hearing of the application. It is a little over two weeks, so from what I have read, I need to submit a statement of response to the court and the claimant at least a week before.. 

 

I have been reading around this site and the answers in this thread, this is what I have come up with so far:

 

In response to the request from the claimant to be granted summary judgement, I submit a statement of dispute on the following grounds;

 

Claimant has stated in part 1. That "The defendant has no real prospect of defending the claim". This is disputed as the claimant has still not complied with my sections 77, 78 and 79 request as the documentation provided is not compliant. 

 

Claimant has stated in part 2. That "There is no compelling reason why the case should be disposed of at trial." This is disputed as under sections 77, 78 and 79 of the Consumer Credit Act, a creditor cannot get a court judgement against someone without providing this.


Statement of facts

*The claimant has failed to provide me with proof of the debt.
*The claimant states that the debt is £1773,03, but is claiming for £1,823.03 without any explanation. 
*The claimant states that the application is due to me not filing out an expenditure form, but I have still not been sent the information requested to prove the debt.

 

 

Please could you tell me if I am on the right track at all?

 

 

Edited by Tayen2
Bad Manners! ;)

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sorry the thread confusion

 

looks like you are on the right trail with the above

im sure andyorch will pop in later.

 

dx

 


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Thank you so much, both of you!  This is really helpful and the kind of thing I have been looking around for. 

 

Truly appreciated. :)

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Hello, sorry to bother you again.. 

 

I used the example you provided and wondered if this was acceptable to send please? 

 

 

xxxxxxxxx being the defendant in this case will state as follows; I make this Witness Statement to oppose the claimant application for Strike Out/Summary Judgement in view of my defence submitted to the claim dated 30/06/2017 pursuant to CPR 24.5 (1) a&b 

 

1. The claimants 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 claims to circumvent and claim the full amount of debt to maximise profit.  

 

The claimant is also claiming a sum of £1,823.03 when exhibit JK1 Pg 6 shows a balance purchase of £1773.03. There has been no information presented as to why there are variable balances.

 

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.  

 

4. Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and Capital One. 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 unable 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 marked JK1 are the true terms and conditions as issued at the time of inception and execution of the agreement. 

 

5. Contained within the claimants particulars and 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 has been served upon the defendant pursuant to S.87(1) CCA. Exhibit JK1 pages 29-30 has been labelled as a ‘default notice’ by the Claimant, however this is not 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. 

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. 

 

Stay of Proceedings 

 

6. Paragraphs 15 and 16 are 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.Therfore the request to lift the stay should be denied as the above is not a true or accurate reason or occurrence of events. The case was stayed over 2 years ago and the claimants reason for application to lift the stay is based soley on an income and expenditure form not being completed.  

 

Application to strike out/Summary Judgement 

 

7. Paragraph 19 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. 

 

8. 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. 

 

 

 

 

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Yes if your happy with its contents and have challenged all the points raised in the claimants statement......there is no set rules on a statement ...its your own words in support of your defence.

 

Don't forget to add headers and a statement of truth and sign and date.

 

Andy


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Hello again,

 

My husband's court date for the above is next week and he is extremely anxious and worried about it. 

 

I explained that it is just a hearing to see if the court will enter a summary judgement and that they probably will not due to his statement that was sent, but he is worried that he will be put on the spot and asked questions and that he will get a CCJ..

 

I have said that he can just refer to his statement if asked anything and that it may be in a room type of thing, rather than an official looking courtroom..

 

Am I right in the above please?

 

Also, what happens if someone from Cabot doesn't attend?

Does that make any difference?

Should my husband be ready to say something about it to help in his favour, if so what?

 

Apologies for all of the questions, I know that you two are very much in demand all over the website. 

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Summary Judgment/strike out hearings are quite informal and normally last up to 60 mins...there is no need to be anxious or worried.. dont let the nerves get the better of you and spoil your chances....there can only be one of two out comes...their application is dismissed or they get their application for SJ..it is a mini trial.

 

Normal practice is to create a bullet point sheet for easy referral rather than trying to read through a full statement for the answers...this is referred to as a skeleton argument.

 

If the claimant (Counsel) does not attend then obviously that goes in your favour..you have the one upmanship as they are not there to argue and solely rely on their statement in their absence. If they have not given notice that they will not be in attendance then you could direct the court to consider CPR 27.9

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.9

 

And also CPR 23 .11

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part23#23.11

 

If their application fails dont forget to ask for costs.

 

Andy


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Thank you, that's really helpful..

 

Oops, I have given him the wrong information then. For some reason I had it in my head that they wouldn't grant a SJ since he had responded disputing it.

 

Okay, thanks again! Appreciated :)

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Oops this isnt a set a side ...apologies I have amended my response above


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Summary judgment as tool to control litigation costs

 

Summary judgment is a procedure in which a party to an action (or the court, of its own accord), can apply for an early determination of all or part of a claim without the need for a full trial.

There is still a court hearing, but it is greatly simplified. For example, there is no expert evidence or cross examination of witnesses.

The summary judgment procedure can only be used in certain claims, in which it can be argued that:

  • a claim or defence has no real prospect of succeeding at trial, on either the entire case or a particular issue
  • there is no other compelling reason why the case or issue should proceed to trial

A 'real prospect of success' means there is more than just an arguable case: it must actually have a reasonable chance of winning. However, even if the application is not successful, in some circumstances it may still offer a tactical advantage, because in preparing for the application, the responding party will be forced to set out its position and evidence earlier than usual.

The procedure

An application for summary judgment is usually only made once the defence or acknowledgement of service has been filed.

Summary judgment applications are suitable in cases where the party making the application considers that the case is a clear cut matter of fact or law, in which oral evidence is not required. It is also used when the applicant considers that the other party has insufficient evidence to prove its case. There are considerable potential savings in terms of time and costs.

An application notice must be completed, then filed and served along with the supporting evidence - usually a witness statement together with copies of any supporting documents. The supporting evidence will set out the reasons why the applicant considers summary judgment to be appropriate.

The respondent also has an opportunity to rely on written evidence, which must be served in good time for the hearing.

At the hearing, the applicant (or usually their solicitor or counsel) will set out the reasons why they consider summary judgment is appropriate. The respondent then has a chance to advance counter-arguments.

Although the burden of proof is on the party making the application, the responding party will usually be required to make points in his favour in order to demonstrate to the judge that his case has sufficient potential to succeed. The judge will usually make an order there and then, including an order for legal costs.

The court will not grant summary judgment when it is satisfied that there is some other reason - besides the merits of the case - for the matter proceeding to trial; for example, the respondent needs time to investigate the claim and has not yet had chance to do so.

What the court may order

There is a wide range of possible orders open to the judge on these applications, including:

  • if the court finds wholly in favour of the applicant then the applicant will be awarded judgment and the case will be disposed of that way (subject to any appeal)
  • the court may make a conditional order that the respondent must take a particular step (for example to pay some money into court) in the action
  • summary judgment can also be granted in relation to a part of a claim or a particular issue only. If this happens, that aspect of the claim is resolved and the remainder of the claim proceeds to trial in the usual way
  • if the application is unsuccessful, it will be dismissed and it is likely that the applicant will be ordered to pay costs to the respondent as well as bearing its own costs. These costs can be significant
    Each case will be judged on its merits in terms of the costs order made, and the court has the power to make further directions about the future management of the case at these hearings.

What does this mean?

  • summary judgment is a useful tool to obtain determination of suitable claims at an early stage, and make potentially large savings in costs and time
  • however, it is only suitable for clear-cut cases which have arisen out of a straightforward point of law and/or fact and where no oral evidence is required

What should you do?

  • consider whether your claim is one which may be suitable for dealing with by way of an application for summary judgment. If your case is complicated and/or will require oral evidence then it is not likely to be suitable; however, if it is fairly straightforward and can be dealt with by examination of documents alone, then it is more likely to be able to be dealt with by way of summary judgment
  • consider the risk that a judge may not award summary judgment in your favour: you may consider that your opponent has an un winable case, but the judge, as an objective person, may see things differently! If you do not win, then you will be likely to have to pay your opponent's costs associated with the application, as well as your own
  • seek early advice on the merits of your case as a whole and the likelihood of success at trial and/or its suitability to be addressed by way of summary judgment application

 


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Ah thank you!

my husband just needs to make clear that it isn't straight forward or clear cut, that he has grounds for a successful defence.

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Basically yes any flaws that he can see in their application and statement of support and highlight them within his skeleton argument.


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