Advice please - court papers received Barclays credit card/ ** CLAIM STRUCK OUT**

[Gazza112]

Subbing with interest

[Genelover]

Thanks sunflower, it really is so reassuring to know I'm not alone in all this! Good luck to you too, keep fighting!

[meerkatsmimm]

subbing GL, all the very best.

[creditcardmug]

Section A tick no to all

4 reasons The claimant has failed to substantiate this claim

Section B tick yes (if it has already been transferred to your local court) if it has write that in the box, if not write that you are unable to travel etc.

section C tick no. in the box write "please see attached section C"

Section D Write the amount they are claiming, not including costs

applications tick no

witnesses write your name, and in brackets "myself"...in the other box write "all facts"

Experts tick no to the first question, leave the rest blank

Track fast track....leave the box blank

Section E 2 hours....fill in the rest if there are any dates you cant attend

Section F tick yes to 1st question...no to 2nd

Section G leave blank

Section H leave blank

Section I tick yes to the 1st question...no to the second

tick no to applications

in the big box write "please see attached section I"

 

Sign & date it etc.

[creditcardmug]

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© notices of assignment together with proofs of service

(d) the deed of assignment the original document must be brought to the hearing

(e) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(f) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

[creditcardmug]

Other Information

 

Section I

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the fast track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further

[creditcardmug]

Pre-Action Protocols

 

Section C

 

 

This case is not covered by any approved protocol, I have tried to act reasonably in exchanging information/documents relevant to the claim, however the claimant has been unco-operative.

On the DATE I wrote to the claimant requesting information pursuant to the CPR Part 31.14, in order that I could investigate their Particulars of Claim, and file a suitable defence. A copy is attached to this form.

 

The claimant has not replied

[creditcardmug]

In the directions, fill in the xxxxs, dont fill in the dates in paras 1 and 4, the judge will do that

 

In the Pre-Action Protocols fill in the date and attach a copy of your CPR letter

 

Print off the last 3 posts, and attach to the AQ

 

Send it to the court by SD,or take in to your local court, if it has been tranferred, dont bother sending a copy to the other side

Edited June 27, 2009 by creditcardmug

[Genelover]

Wow! Superb. Thanks so much CCM:D

[Genelover]

And you really think I shouldnt bother sending a copy? Well, why should I , they dont send me what I've asked them for!

[creditcardmug]

If you go into the court office ask whether they have filed their AQ, if they have ask for a photocopy

[Genelover]

I will do - and keep you posted! Don't know what on earth I'd do if I hadn't stumbled across this marvellous forum!

[sunflower99]

Thanks sunflower, it really is so reassuring to know I'm not alone in all this! Good luck to you too, keep fighting!

Hi Genielover i will now ive found Cag:) Good luck to you too! I think in your case CL fiance will do a runner before it gets past courtroom door,They often do!

[Genelover]

Quick update - a couple of weeks ago I received a letter from the court saying the claimant had been given until 30th June to file an AQ, or the case would be stayed. Yesterday I receive a 'general form of judgement or order' dated 26th June so assume this means they filed their AQ? Anyway it says the claimant has to file fully particularised particulars of claim and to comply with CPR PD 16 Paragraph 7.3 by 4.00pm on 16th July. Then it says I have until 13th August to file an amended defence.

 

Am I right in thinking this means the judge is saying they have to comply with my CPR request? The letter also says 'this order having been made by the Court pursuant either to Rule 3.3 or Rule 23.8 of the Civil Procedure Rules 1998, any party affected by this order has a right to apply to set it aside, vary or stay it by application made not more than 7 days after this order was served on the party making the application.'

 

Can anyone kindly clarify this for me?!

[the_shadow]

Quick update - a couple of weeks ago I received a letter from the court saying the claimant had been given until 30th June to file an AQ, or the case would be stayed. Yesterday I receive a 'general form of judgement or order' dated 26th June so assume this means they filed their AQ? Anyway it says the claimant has to file fully particularised particulars of claim and to comply with CPR PD 16 Paragraph 7.3 by 4.00pm on 16th July. Then it says I have until 13th August to file an amended defence.

 

Am I right in thinking this means the judge is saying they have to comply with my CPR request? The letter also says 'this order having been made by the Court pursuant either to Rule 3.3 or Rule 23.8 of the Civil Procedure Rules 1998, any party affected by this order has a right to apply to set it aside, vary or stay it by application made not more than 7 days after this order was served on the party making the application.'

 

Can anyone kindly clarify this for me?!

 

Thats good news, the court have agreed to your directions order they have till 16th July to give you the info you requested.

 

S.

[creditcardmug]

Yes, looks ok, can you type up the order word for word?

[Genelover]

Hi CCM,

 

This is it: It is ordered that:

 

1. Claimant to file fully particularised particulars of claim and to comply with CPR PD 16 Paragraph 7.3 by 4.00 pm 16 July 2009.

 

2. Any amended defence to be filed and served by Defendant by 4.00pm on 13 August 2009.

 

3. This order having been made by the Court pursuant either to Rule 3.3 or Rule 23.8 of the Civil Procedure Rules 1998, any party affected by this order has a right to apply to set it aside, vary or stay it by application made not more than 7 days after this order was served on the party making the application.

 

So what happens if they don't come up with the goods?!

[Genelover]

Oh dear! Received a reply to CPR18 request on 16th July. They have sent what appears to be a microfiche copy of what clearly states is a 'BARCLAYCARD Application.' Am I right in thinking that as it is an application, and not an actual agreement, I can submit a revised defence on this basis? And do they not have to come up with the original document in court? It does state at the the bottom 'This is a credit agreement regulated by the Consumer Credit act 1974. Sign it only if you want to be legally bound by its terms.' BUT the section directly above is completely blank, no prescribed terms or any of that.

 

Any advice on my next step please?!!

[creditcardmug]

1. Claimant to file fully particularised particulars of claim and to comply with CPR PD 16 Paragraph 7.3 by 4.00 pm 16 July 2009.

 

And the question is...have they actually done this? ("file" means send it to the court to be included in the court file)

 

Look up cpr pd 16....phone the court and see what they have filed, if anything.

HAVE THEY FILED A FULLY PARTICULARIED PARTICULARS OF CLAIM, IF SO TELL THE COURT YOU MUST HAVE A COPY IMMEDIATELY, in order to file a defence to it.

 

IF THEY HAVE FAILED IN ANY OF THIS, THEN MAKE A FORMAL APPLICATION TO HAVE THEIR CLAIM STRUCK OUT.

 

If you need further help shout....sorry the caps lock stuck on

[Genelover]

Right, what they have sent is this: Amended particulars of claim pursuant to civil procedure rules 16, paragraph 7.3

 

Exhibit 1 which is what appears to be a microfiche copy of an application form(prescribed terms are not legible section above signature box is black)

 

Print-out copies of statements from 2004 (account was opened in 1996) - my directions asked for all statements)

 

Exhibit 3 - account sale agreement between Barclaycard and CL Finance

 

Exhibit 4 - assignment letter from CL Finance

 

Exhibit 5 - default notice from Mercers

 

My directions order, drawn by the wonderful CCM, states that I need a copy of a document that contains all the prescribed terms. What they have sent clearly doesn't. Can I ask for teh case to be struck out on that basis?

[cerberusalert]

Exhibit 5 - default notice from Mercers

Is that DN in order?

[Genelover]

Not sure - what am I looking for?!

[cerberusalert]

Did they give a specific calender date to remedy by and was it at least 14 days from you receiving the notice?

[Genelover]

Unfortunately, yes, looks to be in order!

[cerberusalert]

A pity, but always worth checking.