Link Claimform - old GE Money Debt - **STRUCK OUT** reinstated **WON AGAIN + COSTS**

[MAGDA]

just rang the court and they are sending a copy. £5 fee. thanks for your help Bill, will let you know when the letter arrives and the content. Magda

[I've got no money]

Ok - I think that we need to see what's exactly happened - the starting point is, as you're doing already, get the Order and then post it.

 

Incidentally as it affects you you are entitled to a copy - so you shouldn't have to pay for it.

 

So that we're up to speed with it all - can you post the claim form, the defence and all the orders to date.

 

It's certainly a strange sequence of events - as both parties attended in March - I'll be interested to see what basis the DJ has made the latest order on.

 

Costs you have a costs order that should have been paid within 14 days - it's too late for them to appeal the costs order - so if I were you I'd enforce it. Lets have a look at the order and then take it from there.

[MAGDA]

Ok - I think that we need to see what's exactly happened - the starting point is, as you're doing already, get the Order and then post it.

 

Incidentally as it affects you you are entitled to a copy - so you shouldn't have to pay for it.

 

So that we're up to speed with it all - can you post the claim form, the defence and all the orders to date.

 

It's certainly a strange sequence of events - as both parties attended in March - I'll be interested to see what basis the DJ has made the latest order on.

 

Costs you have a costs order that should have been paid within 14 days - it's too late for them to appeal the costs order - so if I were you I'd enforce it. Lets have a look at the order and then take it from there.

 

Thanks IGNM, I will sort the orders out and post them up as soon as I can but in the meantime these are the details:

 

My defence was a holding defence as the claimant had not provided documents requested and needed for me to submit a complete defence. I had asked for terms and conditions relevant to the agreement, DN, NOA, and proof (statements) of how the debt was calculated, and the court's first order was as follows:

 

July 2008: "the claimant to file and serve a reply to the Defendant's defence setting out how the claim is calculated in 14 days of service of this order"

 

No response to the above order from the claimant

 

I therefore contacted the court requesting the claim be struck out.

 

Court's response:

 

August 2008: "Unless the claimant do comply with the court order dated xxx July 2008 by filing with the court and serving on the defendant a reply to defence by 4pm on xxxx september 2008, the claim will be struck out without further order."

 

claimant still did not respond and the following order was issued:

 

"The claimant having failed to file and serve a reply to the defence by 4.00pm on xxx September 2008 pursuant to the order of xxxx August 2008 It is ordered that the claimant's claim be and hereby is struck out."

 

Link responded, but too late for the deadline , they claim they sent their response by DX and it arrived a few days too late!! Ever heard of a fax machine.

 

In their reponse they make mention to the fact that DN was served by the OC, but no proof of this. They state that the OC has not retained statements of account, and have supplied just one statement from the OC and their own figures since purchasing the debt. There will be significant charges on the account, but without statements it's impossible to say for certain or to prove how much the debt is (or isn't) for.

 

They provided a copy of the agreement (which looks enforceable) although the t&c's are illegible as they are practically microscopic. They sent two types of NOA - one "sale of your debt" the other "Notice of intimation of assignment" both on Asset Link headed paper.

 

Still no DN or statements of account.

 

Costs were awarded, although small amount at less than £50.

 

"IT IS ORDERED THAT THE CLAIMANT DO PAY THE DEFENDANT'S COSTS SUMMARILY ASSESSED AT £XXXX PAYMETN TO BE MADE BY XXX FEB 2009.

 

THIS ORDER HAS BEEN MADE WITHOUT A HEARING, YOU MAY WITHIN 7 DAYS OF THE SERVICE OF THIS ORDER APPLY TO THE COURT6 TO SET ASIDE OR TO VARY THE ORDER UNDER PART 23 RULE 10."

 

Apparently, in the meantime, Link had written to the court (in Oct 2008) and asked in their letter that the claim be reinstated. The judge on considering their application refused (same judge who has just revoked the order made in March).

 

Link submitted a further application (Jan 2009) to again attempt to get the claim reinstated:

 

"Take notice that the claimant's application to reinstate the claim will take place on xxxx March 2009

 

The judge at the hearing noticed that Link had already applied once (by letter) to have the claim reinstated and the judge had declined their application, he said that as he was the same level as the judge in question, it would make absolutely no sense for him to overrule the original order. He did give Link leave to appeal and it would then be up to a higher judge to decide, "if they wanted to spend more money in this way."

 

The order he issued was :

 

"Upon hearing for the claimant and the defendant in person:

 

Upon the court deciding that the claimant's letter of xxxx October 2008 constituted an application to re-instate and that the refusal to do so constituted a judicial order made by District Judgexxxxxx on xxx October 2008 and thereby concluding that the application of the claimant to re-instate dated xxxxx Feb 2009 is res judicata.

 

It is ordered that:

 

The claimant is permitted to appeal the order of DJ XXXX dated xxxxx notwithstanding the effluxation of time.

 

In the event that the claimant wish to appeal they shall file and serve their Notice of Appeal by 28 days.

 

the costs order in favour of the defendant dated xxxx january 2009 be stayed until the 28 day period unless the claimant has filed a Notice of Appeal in which event it be stayed pending the outcome of the appeal"

 

that is pretty much it to date, and as you know, the judge who refused to resinstate their claim (their letter submitted back in Oct) has now revoked the decision of the judge in March, although the judge in this case was infact upholding the other judge's decision.

 

Many thanks for the advice so far and any other help you can give.

 

Magda

Edited April 30, 2009 by MAGDA

[MAGDA]

Wishing you well Pritchy. Link has behaved in a similar way with me. I had a claim struck out last year, as they did not respond to my defence, although given a chance to do so on two separate occasions by the judge. They (unknown to me) applied to have the claim reinstated end of last year, but the judge refused. They then submitted an application in Jan again to reinstate. The judge again refused as he said a decision had already been made last year, but gave them the right to appeal to a higher judge. Now they have written to the court and the judge (who originally refused to reinstate) has now scheduled another hearing, so back to square one again. They didn't even submit a proper application, let alone an appeal, just a letter. So I know exactly what you are up against - just when you think things are sorted, off you go again. Good luck, hope it all works out for you, Magda

[I've got no money]

So he gave them permission to appeal - have you received their notice of appeal

[MAGDA]

No, theyhaven't appealed as ordered, although the previous judge said that they must, and it would go before a higher (circuit?) judge. They simply sent a letter to the court, not even a proper application, and the DJ has revoked the order made in March (order refusing to reinstate, but granting permission to appeal within 28 days) and basically they can have yet another go at getting the claim reinstated (this in effect will be the third application). So the whole appeal thing has been conveniently overlooked. The strangest part of this is that the DJ who has now revoked the order made in March was the same DJ who refused their application to reinstate the claim, and his colleague in March was simply upholding this. many thanks, Magda

[I've got no money]

If the court has asn order without a hearing it may be that you can apply to set it aside...when the order turns up we'll see what it says

[MAGDA]

Thanks IGNM, I should get a copy of Link's application (letter) that they sent to the court, hopefully either today or tomorrow, so will be interesting to see what they have actually said that resulted in the previous order being revoked. Also, I should also get a copy of the actual order soon as well although I think it basically will just say that the order of xxxx March has been revoked on consideration by DJ XXXXX following receipt of Asset Link's letter, and to be listed for hearing, or something along those lines. I will post up the content of the letter as soon as I have it.

 

Many thanks for your help so far, Magda

Edited April 30, 2009 by MAGDA

[MAGDA]

Hi, right received a copy of Link's letter from the court:

 

 

 

[MAGDA]

In actual fact they did not 'just' miss the deadline to submit their response to my defence. They were ordered to respond in July, failed to do so, ordered again in August, again failed to get their reply to the court in time. They claim the response was sent by DX and arrived too late. This is the reason the judge, on considering their written application in October declined to reinstate as he said all correspondence is date stamped. Now, however, that same judge is allowing yet another hearing to again decide whether to reinstate even though his colleague, at the hearing in March, refused to consider any further appplication at that time, based on the fact that an application had already been made and declined, hence the instruction to appeal. Many thanks for any advice, i'm really grateful for any help, magda

Edited April 30, 2009 by MAGDA

[I've got no money]

I think that the whole thing has been mishandled by the other side and the court.

 

As I understand it they got struck out. The correct approach to reinstate would be to make an application on an N244 to reinstate. That application would normally be adjudicated on at a hearing. If they had lost then there would have been an application to appeal.

 

I have to say that if they were only a few days late in respect of the unless order I would have expected the claim to have been re-instated.

 

It appears that what happened was that they wrote to the court - at that point the court should have sent the letter back and told them to make an application. Instead the Court made an Order refusing the request. They then made an application to reinstate - at that point the DJ was, in my view right - there was an Order they should have lodged an appeal.

 

Their letter shows they don't really understand what has happened. The problem of course is that these people don't employ real lawyers...

 

I'll have a look at the order when it turns up. We may be able to have it set aside but we need to look carefully at it. We may be able to force them to appeal the order refusing permission to re-instate.

 

The problem you have is that ultimately I would expect that the case will be re-instated. The issue of your costs is only really a delaying tactic - they will pay your costs - it might be fun to use the county court bailiffs to enforce your costs but lets take this one thing at a time.

[MAGDA]

I think that the whole thing has been mishandled by the other side and the court.

 

As I understand it they got struck out. The correct approach to reinstate would be to make an application on an N244 to reinstate. That application would normally be adjudicated on at a hearing. If they had lost then there would have been an application to appeal.

 

I have to say that if they were only a few days late in respect of the unless order I would have expected the claim to have been re-instated.

 

It appears that what happened was that they wrote to the court - at that point the court should have sent the letter back and told them to make an application. Instead the Court made an Order refusing the request. They then made an application to reinstate - at that point the DJ was, in my view right - there was an Order they should have lodged an appeal.

 

Their letter shows they don't really understand what has happened. The problem of course is that these people don't employ real lawyers...

 

I'll have a look at the order when it turns up. We may be able to have it set aside but we need to look carefully at it. We may be able to force them to appeal the order refusing permission to re-instate.

 

The problem you have is that ultimately I would expect that the case will be re-instated. The issue of your costs is only really a delaying tactic - they will pay your costs - it might be fun to use the county court bailiffs to enforce your costs but lets take this one thing at a time.

 

Many thanks IGNM for taking the trouble to look at this. It does, I agree, seem completely mishandled, and we just seem to be going around in circles really. I should have the order in a few days or so I would think, so will post that up as soon as I do. Sending in the bailiffs would really make my day but as you say, will wait and see what the order says anyway and take it from there. Magda

[MAGDA]

Hi, been having problems with Link again.... This claim was struck out last year as Link failed to respond to my defence. They later contacted the court and claimed not to have received any of the orders sent by the court (mmm...) and so the judge agreed to reinstate the claim. It has since been more or less in limbo for the best part of a year. However, Link has now contacted the court to kick start it, and we now have an allocation hearing to attend. Below is the agreement provided by Link and NOA.

 

http://img134.imageshack.us/img134/38/002tnw.jpg

 

http://img134.imageshack.us/img134/5121/001itg.jpg

 

I sent a cpr 31.14 on advice from Surfaceagent, requesting disclosure of DN served on each defendant, however, they have not been able to provide this to date. I am now going to send a follow up to cpr 31.14 stating that if they do not comply, I will apply for a court order.

 

I would really welcome any opinions on the above. I did wonder about the actual figures on the loan, shouldn't Link have shown the total cost of the loan, not just the amount actually being borrowed?

 

many thanks,

 

Magda

[nicklea]

Magda,

 

A very important part of your defence is the noa. If you did not include it in your defence you need to make reference to putting them to proof that it was sufficiently served on you by a registered postal service or personally.

 

Also, you should ask to see the actual assignment itself as the dates on the assignment and the notice need to tie up exactly or it's invalid.

[MAGDA]

Magda,

 

A very important part of your defence is the noa. If you did not include it in your defence you need to make reference to putting them to proof that it was sufficiently served on you by a registered postal service or personally.

 

Also, you should ask to see the actual assignment itself as the dates on the assignment and the notice need to tie up exactly or it's invalid.

 

Hi nicklea, thanks for the reply. I have received a NOA from them - have posted a copy above. It was mentioned in my defence, but they have provided a copy of the document they claim was sent at that time. They have also provided the agreement.

 

They haven't provided a DN though, also mentioned in my defence and I have put them to strict proof now via cpr 31.14.

 

Would be interested in any opinions on the documents above though... the agreement could easily be a reconstruction and I have asked to see the original in court.

 

Thanks, Magda

 

Just to add, the NOA was sent by Link on their headed paper, I haven't got anything from First National, the OC, at all.

Edited May 3, 2009 by MAGDA
PS added

[nicklea]

I presume that the two folowing points were part of your defence:-

 

The noa MUST have been sent by recorded / special delivery or served on you personally before court action commenced (either that or you have admitted actually receiving it - this is never wise to do), otherwise they cannot take you to court.

 

You also need to see the actual document of assignment for two reasons. One, to confirm that it actually exists and ,two, to check that the date on the noa is correct. If the date isn't correct then it isn't valid.

[MAGDA]

Hi nick, no I didn't admit receiving the NOA, I put them to strict proof that all docs had been sent, so nothing in writing from me to say I have it. They have provided the NOA posted above following receipt of my defence (not on time, I might add, which is why the claim was struck out initially). The DN has not been provided at all. I have also stated that I wish to see the Deed of assignment, but nothing there either. This has all been dragging on for over a year now, and it would be nice just to have it all sorted. The other thing is, I would have expected to have received something for First national to state that the debt had been assigned (the goodbye letter) and then something from Link introducing themselves, but nothing at all from FN. Many thanks, Magda

[pt2537]

that agreement is missing info MAGDA

 

look at the agreement regs, schedule 1 para 10, para 18 and para 22

[diamondgirl]

Mine was struck out a couple of weeks back so hope you don't mind me following this with interest. When they told me they'd so called bought the debt thats the same standard letter I got. Never got anything from GE alll they sent me were the statement when I SARd them so perhaps they'll do the same with me eventually.

DG

[MAGDA]

that agreement is missing info MAGDA

 

look at the agreement regs, schedule 1 para 10, para 18 and para 22

 

Hi pt, will have a good look at the regs posted above, Link seem to be really gunning for us at the moment, all of the claims were either struck out or discontinued, and they are trying to get them all up and running again, thanks for your help, Magda

 

 

Mine was struck out a couple of weeks back so hope you don't mind me following this with interest. When they told me they'd so called bought the debt thats the same standard letter I got. Never got anything from GE alll they sent me were the statement when I SARd them so perhaps they'll do the same with me eventually.

DG

 

Hi DG, yes, I've been watching your thread and was really pleased with the outcome you had recently, always nice to get the better of Link. I noticed on another thread they are trying to reinstate another claim that was struck out, they just don't seem to know when to give up. In my case the claim was struck out, and they then wrote to the court and said they hadn't received the orders sent by the court, of course they were lying through their teeth, but the judge reinstated it. I'm sure you'll be absolutely fine, I think they are annoyed as they brought four claims against us and haven't been successful with any of them so far.

 

Magda

[MAGDA]

pt, can only find regs for 2004 or 2006 online, but my loan was 2003. Should the agreement have shown the total loan amount (with interest) - as the one above just shows the actual amount borrowed?

 

thanks, Magda

[pt2537]

pt, can only find regs for 2004 or 2006 online, but my loan was 2003. Should the agreement have shown the total loan amount (with interest) - as the one above just shows the actual amount borrowed?

 

thanks, Magda

bear with me and i will find the regs

[MAGDA]

thanks pt

[pt2537]

 

 

[MAGDA]

That was quick pt, many thanks for the above:). As far a para 10 goes, they haven't stated the total charge for credit - don't know if the APR alone is enought here, they seem to have covered themselves where para 18 is concerned as they have stated next to APR: "No account of any variation of the rate or of tthe amount of interest payable has been taken."

 

para 22: charges on default: they have mentioned in the t&c's (which were apparently overleaf) that if the customer misses a payment, they must pay FNB all of the money that it reasonably costs FN to deal with any returned or unpaid itmes of that kind, it doesn't actually say how much though. Would this be enough?

 

really appreciate the help, Magda