AK Claimform - MBNA card 'debt'

[Guest]

was thinking of this (cpr practice direction 26 para 3.2) re your post #334

 

position at end of stay if no settlement reached

 

(1) At the end of the stay the file will be referred to a judge for his directions.

 

(2) He will consider whether to allocate the claim to a track and what other directions to give, or may require any party to give further information or fix an allocation hearing.

 

 

but, wonder if they have applied for summary judgment and that is their notice of the hearing and evidence for it? seeing as you've had no notice of allocation? or maybe it is an allocation hearing?

anyway, check with court. or maybe andy will look in before then.

Edited August 25, 2013 by Ford

[MeeBroke]

Yes it does say they have applied for summary judgement. What do I do now?

[Guest]

oh ok!

 

under which cpr part does it say that they have applied under. am guessing part 24? and so is a hearing to hear their application?

 

see for eg cpr part 24 and practice direction 24

Edited August 25, 2013 by Ford

[MeeBroke]

Sorry, I didn't know it was different to the process we assumed was progressing. The last letter from the court said I'd hear from a judge in due course.

 

It is CPR 24. 'The defendants attention is specifically drawn to CPR 24.5'

 

They are claiming that I have 'unreasonably defended' and thus has incurred costs over and above the fixed costs otherwise allowable.

 

All pretty intimidating stuff.

 

MB

[Guest]

but, they have applied for summary judgment in the meantime, which effectively 'stops' the allocation subject to the outcome of the SJ hearing

 

have a look at cpr part 24 in full (note re the grounds for SJ, which for eg you would need to counter if goes to hearing), and the practice direction 24 http://www.justice.gov.uk/courts/procedure-rules/civil/rules#part21

Edited August 25, 2013 by Ford

[MeeBroke]

I see. So I now need to prepare a WS and all documents to be submitted?

 

Thanks for your help!

[Guest]

yes, any written evidence you rely on in support of your objections to their application (24.5)

 

give andy a nudge

[MeeBroke]

Thanks again Ford

 

I'd be grateful if anyone could let Andy know I could use some more of his guidance. I realise it's a bank holiday weekend though!

 

MB

[Guest]

Thanks again Ford

 

I'd be grateful if anyone could let Andy know I could use some more of his guidance. I realise it's a bank holiday weekend though!

 

MB

 

have pm'd andy for you

 

you have a bit of time, so don't worry.

Edited August 25, 2013 by Ford

[AndyOrch]

Responding to Fords PM.

 

Hi MB..... yes it is as Ford has advised they have opted for SJ CPR 24.This is usually done before AQ hence the lack of allocation.

 

You can respond as advised in objection and submit your own WS (not less than 7 days pre hearing) stating the reasons why your defence has merit and why it should proceed to trial.

I would advise you scan in their Application and also their WS (less any identifiable data) for others to view and respond.

 

Regards

 

Andy

[MeeBroke]

Thanks Andy

 

MB

[MeeBroke]

The relevant bit from their application:

 

What order are you seeking and why?

 

Summary Judgement on the whole claim as the Claimant believes the Defendant does not have a triable defence to these proceedings for the specific reasons as set out on the attached WS.

 

The Defendants attention is specifically drawn to CPR 24.5 (1). If the Defendant wishes to rely on written evidence at the hearing, he must file such written evidence with the Court and serve a copy to the Claimants solicitors at least 7 days before the hearing allocated by the court.

 

 

The WS runs to 6 pages so I may have to paraphrase. I don't have access to scanner.

 

MB

[Guest]

basically, if they 'win' at the hearing then there will be a ccj against you.

have a look at 24 re the reasons, and therefore for negating their application.

 

you could try take pics of it, upload to pc, reduce size, then convert to pdf, then upload here? but remember to delete any identifiables.

 

otherwise, you will be looking to negate/rebut their application/WS, with any evidence. as andy says.

Edited August 29, 2013 by Ford

[BRIGADIER2JCS]

You have a reconstituted agreement, which from what you have said is compliant with CCA '74 sections 77/78 request.

I does not have to be in one document, nor does it have to have signatures, the name of the creditor and their address, your name and address at the inception of the agreement and the Ts & Cs you have received. If the creditor can produce evidence that the 'credit facility' has been used and payments have been made to the account, a judge may well conclude that a liability subsists and the debt is payable.

[MeeBroke]

Up until now, the only notification I have had of a pending court date was from AK's solicitor, informing me the date is 21 October. there is no document within their submission to me that is from the court, stating that there will be a meeting at the court on that day.

 

Yesterday received a confusing document from the court. It is dated 27 August and is a 'Standard Order for stay settlement with consent of all the parties. It names a specific judge in my local court and that he 'orders that the claim is stayed until 7 October to enable parties to attempt settlement.'

 

'On or before 23 September one of the following steps must be taken:

 

Either

 

The claimant must notify the court that the whole of the claim has been settled

 

Or

 

The claimant or defendant must write to the court requesting an extension of the stay period, explaining the steps being taken towards the settlement and identifying any mediator, expert or other person helping with the process. The letter should confirm this agreement of the the other parties

 

Or

 

All parties must file a completed directions questionnaire at the court. Where a settlement of some of the issues in dispute has been reached, a list of those issues should be attached to the questionnaire. The list must be agreed with the other parties and must indicate that it has been agreed.

 

Date 22 August 2013

 

 

 

 

 

 

There is no mention of the 21 October hearing date.

[MeeBroke]

You have a reconstituted agreement, which from what you have said is compliant with CCA '74 sections 77/78 request.

I does not have to be in one document, nor does it have to have signatures, the name of the creditor and their address, your name and address at the inception of the agreement and the Ts & Cs you have received. If the creditor can produce evidence that the 'credit facility' has been used and payments have been made to the account, a judge may well conclude that a liability subsists and the debt is payable.

 

This flies in the face of almost everything I have studied about CCAs.

 

Mine isn't reconstituted, it's an illegible photocopy of the tear off slip of an application and what appears to be a photocopy of perhaps another side of the agreement. Neither of these photocopies include a schedule of interest relevant to that applied to my account. There are two different, separate sets of T&Cs.

 

Apart from that the default notice is also defective.

 

MB

[Guest]

have you spoken to/checked with the court?

[MeeBroke]

have you spoken to/checked with the court?

 

No, I was away and have just opened this letter which arrived yesterday.

 

MB

[Guest]

check tomorrow. maybe things have crossed?

[MeeBroke]

check tomorrow. maybe things have crossed?

 

I'll have to. None of it really makes sense to me. The letter from the court is date 27 Aug but the letter from solicitor was dated 14 Aug.

 

MB

[Guest]

checking with the ct (as previously suggested eg #342) should clarify things. post back after.

[MeeBroke]

Spoke to court. All are true. There is a stay until 7 Oct to allow a further period for negotiation. There is also an application hearing scheduled for 21 Oct.

 

Should I attempt another negotiation?

 

MB

[AndyOrch]

Seems rather pointless MB if they have gone to the expense of filling an application for SJ...I would concentrate on your WS instead.

 

Regards

 

Andy

[MeeBroke]

Thanks Andy, will do.

 

Also, I need to submit a directions questionnaire before 23 Sept but none has been sent to me. Do you know which form that is?

 

MB

[AndyOrch]

Fast track is N181 SCT is N180 you can download and complete on screen then print....but the court should have sent them unless they are waiting on the SJ application hearing?