Creation/Shoosmith Claimform - old Flybe Card - Now N244 to lift stay and request SJ

[AndyOrch]

Hi there.....

 

I have moved your topic to the Financial Legal Issues Forum...please continue to post here.

 

So the court claim .....did you acknowledge service and did you defend the claim ?  or simply admit the claim and returned the forms with an offer of payment ?

 

Andy 

[AndyOrch]

Then they do have a CCJ...irrelevant if you default on the agreed payment.......automatically entitled to secure the judgment vis a charging order.

[AndyOrch]

Thats correct...admittance goes to the claimants sols...they then request judgment.

 

Have you checked with the court ...have you checked the CCJ Registry ?

 

https://www.trustonline.org.uk/?gclid=CjwKCAjwmKLzBRBeEiwACCVihlEeuQNsN116L95MXJ7VY5KH2RlnD84fKuCa_T6oviLUKhpiAOD0DxoCLxUQAvD_BwE

[AndyOrch]

What date did you get this claim form ?

[AndyOrch]

Give it time.....possibly not registered yet....but contact MCOL and ask for a copy of the Notice of Judgment....or current status of the claim.

[AndyOrch]

Edit to suit.......

 

The Defendant contends that the particulars of claim vague and are generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

2. The Claimant claims £xxxxxx is owed under a regulated consumer credit account under reference xxxxxxxxx. I do not recall the precise details or agreement and have sought verification from the claimant and the claimants solicitor by way of a CPR 31.14 and section 78 request who are yet to fully comply.

3. Paragraph 2 is denied. I am unable to recall the precise details of the alleged agreement or any default notice served in breach of any defaulted payments.

4. Paragraph 3 is denied.The Defendant contends that no notice of assignment pursuant to s.136 of the Law of Property Act & s.82 A of the CCA1974 has ever been served by the Claimant as alleged or at all.

5. It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement; and
(b) show and evidence any cause of action and service of a Default Notice  pursuant to sec87(1) of the CCA1974; and
(c) show how the Defendant has reached the amount claimed for; and
(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

6. After receiving this claim I requested by way of a CPR 31.14 request and a section 78 request for copies of any documents referred to within the Claimants' particulars to establish what the claim is for.

7. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

8. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974.

9. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

 

I would also get a CPR 31.14 and section 78 request off tomorrow ...pronto.

[AndyOrch]

Out of interest which credit card and whos the claimant ?

 

Looking back at your history Webby...Im amazed with all the court successes you have had that we have advised on you opted for the easy way out here........

 

Andy

[AndyOrch]

Topic reopened

[AndyOrch]

On 13/05/2021 at 20:05, webbscatering said:

what's my next move?

 

 

You must file and serve a witness statement in response and objection to their application for Summary judgment....this must be done not less than 3 days pre hearing.

[AndyOrch]

It requires a witness statement as the claimant has done with their application....that's a badly worded Court Order...skeleton arguments/statements are normally used in conjunction with a main hearing in support of your defence and witness statement...not at an application for summary judgment hearing.

 

Follow the claimants statement and respond in the same style refuting agreeing or raising your objections as to why their application should be dismissed and why the claim should either proceed to a normal hearing or why the claim should be dismissed.

 

If there is no enforceable agreement then that should be included in your statement and with regards to your offer of payment they have not agreed to accept it the letter clearly states they require further information as your income and outgoings which does not reflect any dispensable affordability.

 

Have a read of the following re Summary Judgment...you should refer to it in your response statement.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

 

Andy

[AndyOrch]

" any payments made will be accepted on a without prejudice basis only "

 

...therefore its not fully agreed or accepted..

[AndyOrch]

So how is your statement in response to their application going ?  Have you got a hearing date yet for their application ?

 

The above letter ...one and the same dont let the new name confuse you.

 

https://www.shoosmiths.co.uk/insights/news/shoosmiths-chartsbridge-launch-equivo-creating-recoveries-solution

 

 

Andy

 

 

.

[AndyOrch]

Have you posted the details of the hearing...?   Is a remote/telecom/video hearing....? What date must you submit your statement by ? its normally 7days pre hearing on Summary Judgment applications.

[AndyOrch]

Okay you have up until 24 hours pre hearing to file and serve your statement and evidence. Give me a nudge mid week and I will draft you a statement in response.

[AndyOrch]

 

IN THE.pdfIN THE.pdf

[AndyOrch]

We made a schoolboy error there by referring to assignment when in fact its still with the original creditor so slapped wrist to me but you really should have checked and picked that error up also before submitting.

 

Its not fatal to your defence but it does give them opportunity to come at you and provides ammunition to discredit your statement.

 

Andy 

[AndyOrch]

No need to respond, the court wont be concerned and if raised simply state that you thought it had.

[AndyOrch]

Compare it to the one attached to WS and see if there is any significant difference.

[AndyOrch]

1 hour ago, webbscatering said:

getting very worried no phone call yet and I'm trying to phone the courts from another mobile

 

What for ...why ?

[AndyOrch]

There was no hearing...the claimant didn't request one. (see N244 application notice) but if you had received the documents on time from the court you could have objected to the application given it was made 5 months after the stay was imposed.

 

See the instructions at the foot of upload Untitled 28.

 

This is something you must raise in your statement after allocation.

[AndyOrch]

Send them an email and attach your proof that  its the courts error and that the judgment should be set a side without need of an application or fee from yourself.

 

Andy

[AndyOrch]

Is there any chance you can visit the court and enquire ?

[AndyOrch]

Not really...they want you to make a further application to set a side the order of 12th May 2021 pursuant to CPR 23.11.2 but that was not an Order but a Notice of Hearing with directions.

 

Do they mean the Order dated 6th July 2021 ? Which grants Summary judgment to the claimant ?

 

CPR 23.11

(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence.

(2) Where –

(a) the applicant or any respondent fails to attend the hearing of an application; and

(b) the court makes an order at the hearing,

the court may, on application or of its own initiative, re-list the application.

 

Andy

[AndyOrch]

Point 5 of the Notice of Hearing of Application refers to Practice Direction 23...23a .6 Re Telephone hearings.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part23/pd_part23a#6.2

 

[AndyOrch]

The Notice of Hearing does not specifically refer to a time scale of contact conformation (IE 2 days)...normally on other Notice of Hearings it does. But they have covered themselves by adding point 5 Re Practice Direction 23...23a .6 Re Telephone hearings.

 

Normally a court would state the days required in the directions and not expect a litigant to start looking up the relevant CPR guidance.

I think the court has messed up here and is trying to backtrack to cover its error. It will probably be best to ring the court in question and ask them to explain what is expected from yourself by the letter dated 24th Aug ?

 

I assume they wish you to make a further application to set a side the Notice of Hearing Application.....but that's something I have never heard of or encountered before....perhaps they can explain and state why ?

 

 

 

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