Backdoor Arrow/Drydens 2008 CCJ/CO - MBNA Card - , debt was already SB'd , **WON** set aside - Now being chased 12yrs later.!!

[DocH]

Hi mandyjayne,

 

You need to get hold of an N244 from here:

 

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForms.do

 

Then fill it out as per surfaceagentx20's instructions:

 

A Defendant faced with a Claimant who declines to deal with his CPR 31.14 obligations promptly (ie within 7 days of the request) may file an application with the court in Form N244 for an appropriate order.

 

The following text is fom a post I made in wakeywakey's thread entitled: 'Marlins/Arrow Global have no CCA-Now what?' and deals with the completion of the N244 for an appropriate order folowing a Claimant's failure to comply with a CPR 31.14 request.

 

In box [3] of the N244 write:

 

'An order that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice and [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and the documents are required owing to [here add any special feature or requirement of the case] and to enable the proper preparation of a Defence.'

 

In Box 4 write: 'Yes'

In Box 5 write: 'Without a hearing'

Ignore Box 6

In Box 7 write: 'None'

In Box 8 write: 'District Judge'

In Box 9 write: 'Claimant'

In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write:

 

'On (date), following service of the Claim Form in this case, I wrote to the Claimant requesting inspection of documents mentioned in the Particulars of Claim pursuant to CPR 31.14. A copy of my letter of request is attached to this application notice marked 'A'.

 

The following is the text taken from my wakeywakey post but hopefully will assist with a gist of the sort of thing to say:

 

[The Claimant replied by letter dated (date) rejecting my request on the ground it had no obligation to comply. A copy of this reply is attached to this application notice marked 'B'.

 

The agreement relied upon by the Claimant is now very old. The documents sought by my request are essential for the proper preparation of my defence and the determination of the claim and CPR 31.14 afford me a right to inspect those documents.']

 

Sign the statement, attach the copies and complete the remainder of the N244 in the usual way applicable to your case.

 

On a separate piece of paper to be attached to your application notice, write this:

 

Claim No:

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request for example, [1] the agreement [2] the default notice and [3] the assignment,]

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

 

The fee payable to the court on filing this application is presently £75.00.

Edited February 2, 2009 by DocH

[mandyjayne]

thank you so much DocH

this is exactly what i meant that i needed help with, just a couple of questions, 1) do i have to do a new n244 as i have already done one and paid £75

2)if i have to then thats fine will do asap just need to clarify if i need to do a additonal one or add to the one that the court already have, just for info i still have not recieved any replies to my CPR 31

thank you once again for your help lets hope i'm posting soon on how to claim back my costs!

regards MJ

[DocH]

Hi mandyjane, what was your previous N244 for? Was it the same issue with the CPR 31 request or something else. If it was concerning the CPR 31 request what did you ask the court to do?

 

thank you once again for your help lets hope i'm posting soon on how to claim back my costs!:grin:

regards MJ

 

[mandyjayne]

Hi DocH,

Posted below is the original 244, submitted to the court and drafted by eLL-enn, because the limitations act also applies.and i have been given a hearing on march 11th to have this set aside hopefully, but anything else i can add regarding their non compliance would be helpful do you think? can you advise what to do as a next step?

still have not recieved anything through the post regarding the cpr31 request

many thanks again MJ

elle-enn's n244 draft is on my post 42 should the attachment not open here.

 

Hi there, affixed draft text for Q.10 of your N244. You will need to enter the claim number, court, your name and their name in the boxes at the top where there are XXX's and type is in bold (don't edit the boxes on the far right "claimant" "defendant").

 

Also I have put XXX's for the date you have lived at your present address from (3rd bullet point) so you need to put the info in there.

 

Where I have referred to Appendix 1 being affixed you need to take a photocopy of the letter you sent to them and also the message from the post office website. Then write the claim number and Appendix 1 on the top of each piece of correspondence.

 

At Q.10 on the form tick the box for attached witness statement.

 

Q.3 "that the County Court Judgement in respect of the above numbered claim be set aside for reasons set out in the attached witness statement.

 

Any questions, just shout.

 

Ell-enn

Attached Files

[DocH]

Hi mandjayne,

 

I've just had a read through your whole thread to try and get the facts straight in my head. On 11 Mar you have a hearing to set aside the CCJ. At this hearing you will need to explain why you did not defend the action originally. That was because the claim was not served on you, and indeed the court papers say so, and had you received the papers you would have defended.

 

The next step the judge will be looking at is to see if you have reasonable grounds on which to defend the claim. This does not necessarily mean that the defence could win you the case, but it must not be something 'fanciful'. Your defence is that the debt was statute barred under the Limitations Act Section 5 and that the claimant was barred from taking any enforcement action. No proof has been provided by the claimant by way of a Credit Card Agreement in support of their claim. The statement that Ell-enn provided supports your N244 application for the set aside. There is no need to submit a fully detailed defence at this stage, just the outline as detailed in Ell-enn's statement.

 

The hearing will only likely take 5 to 10 minutes. The judge will then make his/her decision. If she/he agrees to set aside the judgement (the Charging Order will also be automatically set aside as well) then she/he will order that you submit your defence within a time frame of possibly 14 or 28 days from the date of the hearing.

 

Now I would suggest that you hold off on sending the latest N244 (in support of your CPR 31 request) until about a week before your hearing. You can then ask the County Court Manager to list this for the same time as your hearing for the set aside application.

 

I've attached Ell-enn's statement for ease of reference.

 

MandyjayneN244[1].doc

[mandyjayne]

Hi DocH

 

Once again many thanks for your help..that all makes sense to me i understand..so new n244 about a week before 11th march the one you have posted i will amend and use. Sent CPR31 request on 22nd Jan...nothing received..still!

Just in case i need to claim costs..how do i work this out..i know all recorded delivery letters and prob 2 n244's @£75.00 each.... what about everything else?

 

If anyone has any idea i could be working on that in the meantime:D!

 

thanks again MJ

[supasnooper]

One thing at a time here I think.....let's not get ahead of ourselves.

 

Might just be worth reading and researching the Limitations Act Section 5; and understanding why it is statute barred.

It will be a judge you are explaining this to and he may choose to ask why you think that this is the case.

[mandyjayne]

Hi supa..

 

It was a little light hearted moment..not taken literally!!

 

I have read vast amounts on here about limitations act...the fact i have not heard via post telephone or made any payments for more than 6 years i think puts me hopefuly in that catagory??

 

i now am hoping i have the non compliance of my cpr31 on my side also

 

mj

[DocH]

Hi MJ, definitely statute barred, no doubt at all

 

To be honest with you I am not surprised that you've not had a response to the CPR request. At the moment the CCJ is in force, and until it is set aside by the judge, the claimants do not need to respond to it.

 

Let me explain. A CPR request is made as part of the pre-trial process in order for you to obtain the documents the claimant will be relying on in court. At the moment there is no court claim/trial in process. When the judge sets aside the CCJ there will be the possibility of a trial and the claimant will need to respond. If the claimant has any sense at all, they should discontinue the action once the set aside has been granted.

 

If you are feeling that confident about 'winning' the case then there are a number of threads on CAG concerning wasted cost claims

[supasnooper]

As long as you're confident that you know your case inside out, then hopefully you'll get the result you want.

[mandyjayne]

Hi all..

 

Thanks Doc and Supa...

 

You have both without doubt been so much help to me!

 

Doc you explain things perfectly in laymans terms...and i always understand what you post for me.

 

Supa you have helped no end.. especially when i couldnt work out photobucket..silly me!

 

11th March is fast approaching please put a note in your diaries to keep an eye out for me..im gonna need all the help i can get;)!!

 

forever grateful

 

MJ:D

Edited February 9, 2009 by mandyjayne
add on

[DocH]

Hi MJ, glad to have been able to have helped you. Good luck for the 11 March, not that you'll need it as you have a strong case. Diary has been noted and we'll all be there in spirit for you.

 

If you have any other questions then just shout.

 

Regards

DocH

[mandyjayne]

Hi all...(DocH if you pick this up!)

 

I have just spoken to the court and i dont need to submit a new n244 for the non-compliance of the cpr31...i can in fact add to the one already there:D.

On post 131 DocH has given me surfaceagentx20's draft for an n244, i will amend this one but can i have advice on how to draft it, if it now does not have to be on an n244. Hope this makes sense??

 

regards MJ:)

 

bump

[DocH]

Hi MJ,

 

To be honest I'm not sure, but I would imagine a Witness Statement should do it. Hopefully, someone with a bit more knowledge and experience will provide the answer.

[mandyjayne]

Hi all..

 

can someone help me with what dates to put in this draft..my hearing is on 11th March.

 

 

 

Claim No:

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request for example, [1] the agreement [2] the default notice and [3] the assignment,]

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

 

bump..

[Docman]

Leave the dates blank. The court office will fill in the appropriate dates if and when the judge grants the order.

[mandyjayne]

lovely thanks doc:D

[mandyjayne]

Hi Guys...

 

Well my hearing is fast approaching..wednesday this week..any last minute things i should be doing, or any advise would be helpful.

 

I sent off last week the additional witness statement as above. Not sure if anything else needs to be done at this stage???? help please??

 

regards MJ

[DocH]

Hi mandyjane,

 

You've done all that needs to be done, all you've got to do now is turn up on the day of the hearing. Try to be at the court about an hour before your case is due to be heard, take your partner or a friend for moral support if you can.

 

I know at the moment the process probably seems very daunting, but when you go into the judge's office, it is very likely that it will be only you and the judge and maybe a representative of the claimants if they bother to turn up.

 

Good luck, and let us know the outcome.

[mandyjayne]

Hi urgent help please..

 

court hearing today at 2..received yesterday, claiments witness statement and costs.

 

most of it is pretty straightforward, but can someone comment on their point number 8 and 13?

 

No: 8 "The defendant states that the account is statute barred under section 5 of the limitation act 1980. Section 5 of the limitation act states etc...

the cause of action which resulted in the full balance being payable immediately occurred on the 30th may 2006 by way of termination of the account, therefore the account is NOT statute barred" (they have not included any proof of last payment or mbna statements from 2000)

 

No: 13 "The defendant at all times was fully aware of the debt she owed and the nature of the claim against her. The claimant avers that the defence is both inappropriate and ineffective as it is intended to deliberately frustrate and delay legal proceedings by use of incorrect and misconstrued technicalities in law. It is contended that the defendant has sought to abuse the court process and mislead the court. For the reasons set out above i invite this honourable court to grant the claiment judgment in the amount claimed. Further or in the alternative i invite the court to strike out the application on the grounds that the defendant did not comply with the ts and cs of the credit agreement and enter judgment in favour of the claiment."

 

They have attached copies of only 4 letters they claim to have sent me since feb 2007...none of the letters are on headed paper they have clearly typed these last week! One saying the debt has now been passed to them...contact us and pay now.

A week later a reminder to the first one.

2 months later a final demand.

2 months later considering CCj/charging order.

Fees of £345.00

 

Also..at the end of each letter is says yours faithfully Marlin Financial Services..well who the hell are they??? The claiment is Arrow Global

 

Help please MJ:mad: ps...(do i take costs to hearing as well?? if yes how do i do it)

 

urgent bump

Edited March 11, 2009 by mandyjayne
add on

[42man]

MJ...let me have a read through the thread again...

[mandyjayne]

thank you!!!

[42man]

Let common sense prevail.....the debt is statute barred, the CCJ was NOT served....they are attempting to mislead the court themselves. There is a clear gap of 6 years....

Edited March 11, 2009 by 42man
wrong link

[mandyjayne]

ok wish me luck...

 

i have come up with the following for costs

 

N244 £75.00

postage £14.60

Milage £3.00

Parking £2.00

Postal Orders £11.00

Loss of earnings £60

Research@£9.25 x 10 hours (its more than this!!!!)

 

can you advise if this is ok???

[42man]

I can't really add any more....I think you have to show some resolve in front of the judge.....state that they have provided no evidence by way of your SAR (which is more than a reasonable attempt to get information) that the debt is NOT statute barred and are attempting to mislead the court themselves, when clearly there is a 6 year gap, but they have evaded providing any evidence...as for part 13 the judge will not buy that.....just remember common sense MJ..As for the letters they have sent you are they dated ?