ihpj vs. Citi Cards - court paper received -claim struck out!! now what???

[AndyOrch]

** UPDATE / ACTION **

 

As PT once said: Do not be afraid to pick up the phone and speak to there other side., I decided to take that piece of his advice as well and called them. Spoke to the file handler and verbally agreed a 3 month extension in which to file my defence. We talked about CPR15 and the 28 day period, to which I countered that if they locate the document towards the end of 28 days, I would be prejudiced by not having enough time to review it. We then talked about Consent Orders and settled on the 3 month time frame. I was advised that there would be a £45 fee and as it was an order through consent, there should not be a problem with the Court approving it. Morgans would draft it up and forward it to me.

 

Because my defence had to be in by 4PM tomorrow, they agreed to send it via Special Delivery (9AM). I advised them that if it did not arrive then, I would be filing my defence by midday the same day and citing their non-compliance within it.

 

I am now going to have a quick read up on these 'consent orders' and would be grateful for input if this is indeed how we should proceed? I am not worried about the fee as I should be entitled to remission (tier 1) due to my tax credit status.

 

 

** QUESTION **

 

1. Who should be footing the bill for the fee? Them for having to go away and ask for the information or me for requesting time extension? You because you have exceeded 28 days (an extension of more than 28 days requires an application

 

2. If they send me the draft order, does it matter who submits it? I have said that I would want to submit it because I will then have confidence in that it has been submitted and I do not have to worry about filing my defence. The Sols file it

 

3. Is it a case of me popping down to my local Court and handing over the copy of the order (signed and dated by both parties) and seeing that it has been accepted, not then have to worry about filing a defence? see above

 

4. Once I have filed the draft order, it is likely going to take days for the Court to approve it.The stay is requested by the Sols immediate and the approval and seal can take up to 7 days. I am concerned that they might enter a judgment by default seeing that I have not filed a defence, with the draft order paperwork waiting approval.The Court will check with you that you have consented and request you confirm it the claim will then be stayed.

 

5. I will of course post up a copy of the order I receive, but is there anything I should be looking for? Post it up once received

 

 

As an aside, I have asked the Claimant's Solicitors to:

 

* fax the County Court Bulk Center confirming what we have agreed

* provide such in writing (or copy of their fax) to me

* confirm that the claim has been put on hold at their end (albeit verbally)

* agreed to 28 day period for filing of my defence from when I receive the requested documents.

 

Although I wait to see what they will actually do, I think (given the circs) I have done as well as could be expected?

 

As ever, help/advice/support/guidance welcome (I hope I have done the right thing)...

 

Regards

 

Andy

[ihpj]

** UPDATE **

 

Apologies for not updating this thread as promised. However I do appreciate the input, especially from the last two contributors.

 

The situation is that the order was received as promised (Special Delivery 9AM) and it was worded as agreed:

 

1. 3 month stay, starting from today (06/07)

2. 28 days to file defence from when they have sent the required information

 

Because of the time scales, they drafted and sent the order to me, having signed it themselves. I then signed and dated it, paid the fee and submitted the order to the Court. The reason for this was simply so that I could ensure the Order was filed with the Court in good time; however I remain concerned that the Court system might enter a judgement by default - although I have submitted the Consent Order. However reading the above, taking what Court staff have told me and the [verbal] assurances they have given, I hope this will not be the case.

 

So the 3 month clock is ticking and I have 28 days to file my defence from when they forward the CCA.

[AndyOrch]

Hi ihpj

 

Just out of curiosity why do they need 3 months to furnish an agreement, didn't take them 3 months to lodge the summons?

 

Regards

 

Andy

[ihpj]

Hi ihpj

 

Just out of curiosity why do they need 3 months to furnish an agreement, didn't take them 3 months to lodge the summons?

 

Well the same thoguht did cross my mind, but it was important for me that they did not locate something (anything that they purport to be a CCA) that would leave me at risk of filing a defence while I was indisposed in August (not that I told them this). So the 3 months stay with 28 days to file [a defence] works well for me.

 

I know what they are likely to send me: a [fresh] print out of about 8 pages that they will suggest is the CCA - this will no doubt omit my signature and date box. No way will that be a 'true copy' because its quite obvious its been printed fresh off the laser printer. Indeed those T+Cs may have been applciable at the time, but no way was I given those in that form when I took out the card (I know I didn't sign anything). So I will build my defence around that (if they produce that). Obviously if they send something else, I will review it and seek advice

[Enron]

Sorry for the delay in getting back to you, have a new job and girlfriend which leaves me with next to zero free time.

 

Ultimately if you have not acknowledged the debt, you should lodge a pre-action request to view the "original executed agreement"..... someone should be able to advise you with relation to this. With no acknowledgement they will be trying to enforce on the basis of this - if they don't have it it puts them on shakey ground.

 

That said you probably do need some sound advice on this - shadow i'm not a mod anymore so would be greatful if you could get one of the experienced mods to look and advise on this.

[ihpj]

you should lodge a pre-action request to view the "original executed agreement"...

 

Hey Enron, great to have your contribution and to hear from you! Sounds like things are going well for you

 

By a 'pre-action protocol' do you mean my letter that I sent in Post # 116? Or do you mean the CPR31.14 request sent after they isntigated proceedings? Either way, they have initiated formal action [in the Courts] and I have requested a 3 month stay.

 

Any other thoughts mate?

[rosyb]

Working on that right now!

 

But I am kicking myself for not asking them about 'date of default' when I sent in my CPR18 request originally. Useful only because I could have asked for the copy of the DN (the very same DN that Citi never sent but I asked them for clarification way back when that I sent 1st class recorded but enver got a reply to) as well as the CCA. Having two requests not complied with would have looked better!

 

But my defence will be short and to the point:

 

--------------------------------------------------------

 

I, X of X, am the defendant in this action and make the following statement as my defence to the claim made by the claimant .

 

* The claimants particulars of claim are vague and appear to be an abuse of process in that they fail to deal with the basic rules of pleading. The claim is a bulk centre claim, however, the rules on pleading apply even to the bulk centre; furthermore the bulk centre rules and guidelines state that if one cannot properly articulate the claim in the maximum allowed 1024 characters, then one should not use the bulk centre to issue the claim. The Claimants pleadings amount to circa 280 characters, leaving some 744 character available for the Claimant to plead adequately. As the Defendant, I am embarrassed by the claim which faces me.

 

* In light of this I submitted a written request to the Claimant, pursuant to Civil Procedure Rules 31.14, by 1st Class Recorded delivery on asking for disclosure of documents admitted to in the Claimants reply to my CPR18 request of so that I may be able to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

* It is denied that a credit agreement was signed by the defendant, accordingly, s61(1)(a) was never complied with and therefore pursuant to s65(1) and s127(3) the agreement is unenforceable and the Court shall not make an enforcement order.

 

* If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. The Claimant is put to strict proof that the aforementioned agreement was properly executed and has been enforceable at all times since its’ inception.

 

* The Claimant pleads that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

• The general rule

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

Statement of Truth.

 

I believe that the facts stated in this defence are true.[/quote

 

Farly certain that the county court act refers to statutory interest on judgment debts section 75. I think section 69 interest is quite OK on pre hearing debts cca or not.

 

Sorry

Rosy

[ihpj]

** !! MAJOR UPDATE !! **

 

Firstly, apologies for the delay in providing an update; but I now have some concrete developments to share.

 

In 09/11 I submitted an N244 asking the Court to:

 

1. Force the Claimants to furnish the (so called) agreement by a fixed date; failing which

2. The claim should be struck out; and

3. I be allowed to enter judgement against the Claimant for my costs without need for further judgement.

 

It took the Court till the end of September to issue judgement; I basically got Points # 1 and #2. The exact wording being:

 

Unless the claimant do by comply with defendant's request of preductin of the agreement between Citibank and the defendant (which is the basis of claim) the claim shall be struck out.

 

Now, 'preductin' is not a word that AFAIK exists (unless it is an obscure legal term that I cannot find definition for?) and assume that they mean 'production'. More importantly, the specified for production passed a couple of days ago without a *PEEP* from the Claimant. I have heard nothing in terms of them contesting the N244 or been notified of any hearing by the Court. I will of course call the Court Monday, but since they have failed to produce said 'agreement' I guess the claim stands struck out?

 

QUESTIONS:

 

1. Do I have to do anything to ensure the Court strikes out the claim or will this be done automatically?

2. I know I am able to claim for my costs related to direct Court Fees, is there a schedule I can refer to to claim back my other costs in defending this claim, such as my time spent?

3. Should the Claimants locate said agreement and forward it to me outside of the time set by the Court; am I at risk at all?

4. Following on from above, if they re-start proceedings afresh, do I have any additional recourse open to me (such as abuse of process)?

 

I knew I hadn't signed any agreement and I knew they would never find anything - because I never signed anything. I want now to pursue them for my reasonable costs as well as looking to stop them from processing my data - no agreement, no consent to process my data.

 

I appreciate the latter will be difficult as I look to force them to remove the data on my credit file - but I wanted to solicit opinions. The last thin I want to do is to stir up a **** storm with them because as things stand, they can't do anything without Court order - and they wont get it cause they have no agreement.

 

As ever, thoughts/opinions/advice invited please!

[ihpj]

I think I have some answers on the CAG HERE (re-posted for the benfit of others); but it covers instances where proceedings have been discountinued rather than struck out.

 

I'm unclear if that would apply in my case (strike out)?

Edited October 30, 2011 by ihpj

[citizenB]

These are just my thoughts..

 

That was a good order from Judge for the original application..

 

I would imagine if the Judge has said if the Claimant doesnt comply then their claim will be struck out. Then it will.

 

But best check.

 

I would think however, that the claimant could then apply to have it set aside!!

 

If they dont, and unless they bring to the table new / fresh evidence then I dont think they can bring another claim on the same facts.

 

HTH

[ihpj]

** UPDATE **

 

Contacted the Court today and they have confirmed they have no further records of contact from the Claimants.

 

So letter to Court asking for strikeout (as per Court Order) dropped off this afternoon!

[the_shadow]

** UPDATE **

 

Contacted the Court today and they have confirmed they have no further records of contact from the Claimants.

 

So letter to Court asking for strikeout (as per Court Order) dropped off this afternoon!

 

Sounds good to me

 

S.

[citizenB]

Any updates on this please