Summary Judgement being sought by DCA - Dismissed - Now at full hearing

[MarathonPaul]

Here's the chronology

 

1) Claim received - two card debts rolled into one

2) Returned a defence of statute barred

3) Cabot wish to continue, transfer of proceedings

4) Send CPR 31.14 Request, as I am keen to see some documentation

5) No reply to CPR request from Cabot

6) Cabot send over copy of their completed Allocation questionnaire - they would like to try and settle, requesting one month stay, in the reason box they state " the claimant shall endeavour to provide advance disclosure following which mediation may be appropriate"

7) I post my allocation questionnaire - not looking to settle reason: statute barred defence plus Claimant has failed to respond to my CPR request. Send copy of CPR Request with Allocation questionnaire. In the future applications box on questionnaire I state "yes" and "N244 Compelling disclosure of particulars of claim."

 

That's where I am right now.

 

 

I want to make the correct N244 application / order for direction etc to get this Claim thrown out.

 

A) I think that my current route of CPR 31.14 request followed by N244 compelling disclosure may be weak as the Cabot POC is deliberately vague and they can potentially rightly ignore my request.

 

B) I have heard another option is CPR 16 with a N244 requiring claimant to plead their case effectively.

 

C) Maybe there are other CPR routes that can be taken?

 

D) Can i easily get a "Summary judgement"?

 

 

What do the Forum Experts feel is the best route for getting this thrown out?

 

I would greatly value any advice.

Edited May 5, 2011 by MarathonPaul

[dx100uk]

moved to legal and renamed

 

dx

[rebel11]

Moved Thread.

[MarathonPaul]

bump

[postggj]

I would wait till the case management stage and then request the judge throw out the claim with costs for the reasons given

 

even if cabot withdraw

 

apply for a wasted costs order

[sir_gilmour]

Hi

Welcome to The Consumer Action Group.

 

 

I am just letting you know that as you haven't had any replies to your post yet, it might be better if you post your message again in an appropriate sub-forum. You will get lots of help there.

 

Also take some time to read around the forum and get used to the layout. It is a big forum and takes a lot of getting used to.

 

 

Once you start to find your way, you will soon realise that it is fairly easy to get round and to get the help you need.

 

It can be bit confusing at first.

[MarathonPaul]

Hi All

 

A DCA has issued a single claim 12 months ago for two credit card debts. I supplied a standard "statute barred" defence and the claim was stayed.

 

I heard nothing for 12 months.

 

Now, they are going for Summary Judgement on the basis that my defence of "statute barred" is invalid.

 

I have looked through their evidence bundle and note the following:

 

1)There is a signed credit agreement for one card, but not the other.

2)They have produced aged statements for both cards showing a last payment made on both cards around 4.5 years from when the claim was originally issued last year.

3)The statements are copies, with no heading or logos.

 

I would like to ask if anyone of you see a path to winning this. I am happy to provide more information as required.

 

Please advise....

Edited August 1, 2012 by citizenB

[twofoot]

Do you agree the last payment was under 6 years from the court case on both debts?

[citizenB]

Can you reconcile the payments made on the statements with your own bank accounts/cheque books - debit cards.

 

How does it say the payments were made.

 

There have been instances where "phantom" payments have been made for small sums that when "investigated" have been proved impossible to have been made by the account holder.

 

When did DCA come into possession of these accounts ?

 

Who else had them before DCA?

Edited August 1, 2012 by citizenB

[MarathonPaul]

Do you agree the last payment was under 6 years from the court case on both debts?

 

Hi Twofoot

 

Well, no I don't. I don't recall making the payments at all, and the only thing that says I did seems to be a reconstituted statement in the evidence bundle. I have heard that it is not unknown for the firm to actually make up a phantom payment in a case like this. Would they have to prove absolutely to the court that a financial transaction did occur between two specified accounts if I said I did not make payment?

[dx100uk]

what does your credit file say on these debts?

 

dx

[citizenB]

Ah.. they are reconstructed statements, you say !! Then you need to see the original creditors copies. Also as dx has mentioned - your credit records should show payments being made.

[MarathonPaul]

Can you reconcile the payments made on the statements with your own bank accounts/cheque books - debit cards.

 

How does it say the payments were made.

 

There have been instances where "phantom" payments have been made for small sums that when "investigated" have been proved impossible to have been made by the account holder.

 

When did DCA come into possession of these accounts ?

 

Who else had them before DCA?

 

CitizenB

 

They purchased the debt for card1 direct from the card company in 2008, and for card2 direct from the card company in 2006.

 

So, they are claiming my last payment on card1 was direct to the card company 18 months before they purchased the debt. For card2 they are claiming my last payment was made around the time they purchased the debt, but WOW, thanks Citizenb, the statements they have provided in the evidence bundle show no payment!

Edited August 1, 2012 by citizenB

[citizenB]

CitizenB

 

They purchased the debt for card1 direct from the card company in 2008, and for card2 direct from the card company in 2006.

 

So, they are claiming my last payment on card1 was direct to the card company 18 months before they purchased the debt. For card2 they are claiming my last payment was made around the time they purchased the debt, but WOW, thanks Citizenb, the statements they have provided in the evidence bundle show no payment!

 

Oh dear, oh dear

 

Edited August 1, 2012 by citizenB

[MarathonPaul]

So in summary then:

For card2 there is no signed agreement or evidence of payment being made so my original defence of statute barred still holds.

For card1 there is a signed single page in the evidence together with a separate exhibit of a cca, however they do not seem to have the whole agreement that I signed. There is a statement showing a payment made 4.5 years before the claim was made direct to the card company 18 months before they bought the debt.

 

Is there a means of getting this thrown out? If notwhat defence do i have for card1 ?

Edited August 1, 2012 by citizenB

[citizenB]

They are required to provide a copy of the agreement and any terms and conditions - most specifically from inception and current and the prescribed terms should be on the agreement.

 

However, if it remains the same, that you did not make a payment to the account for 6 years from the first missed payment then your SB defence should hold on that as well.

 

Was there ever a Default Notice issued on the account? - if so, did it give the legally required 14 days minimum to remedy the breach?

[andydd]

Hi there.

 

I recently issued a Summary Judgment application and won, however Summary Judgment is only givenm if it 100% clear that the other side has no case or no possible defence, if there is even an element of doubt or questions which can be discussed then SJ should not be given, it should go onto a proper hearing (in which you may win or lose but thats not the point).

 

To win the SJ all you really need is to show that there are indeed questions that need to be discussed at a full hearing, you dont need to put forward your full defence at an SJ, in fact the point of it is supposed to be a quick easy way of dismmising cases with no merit early on.

 

The main CPR for SJ is quite short :-

 

 

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

 

 

(a) it considers that –

 

 

(i) that claimant has no real prospect of succeeding on the claim or issue; or

 

 

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

 

 

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

 

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

 

Obviously you should say that there IS a compelling reason for trial.

 

Makeb sure you are aware of the timelines for SJ, you must put in your case at leasty 7 working days before case, other side can responmd to that and must be in 3 days before.

 

As this is pre-allocation you can claim costs, I only got £200 (I asked for £900) and Judge was oblivious to new £18 ph LiP rate.

 

Andy

[MarathonPaul]

CitizenB, I thank you for your posts to this thread, and thanks to others, the insight is valuable

 

I am looking to work out the best way forward on this claim against me.

 

My primary focus at the moment is to try and get the Claim thrown out through some process or another.

 

Here is a list of the Claimant's exhibits for evidence for Card1 :

 

1. The company name change doc A to B

2.Signature page with signature on it

3. A copy of the original Terms and Conditions of Use, sent by the card provider. The card provider states " we are unable to supply a copy of the signed application form"

4. A copy of the Credit Card Agreement

5. Card provider Statements, one showing a last payment 4.5 years before the original claim was brought to court.

6. A representation of a welcome to DCA letter from the the debt was transferred to DCA

7. A redacted copy of the assignment of debt agreement between DCA and card provider.

8. An extract of the compact disc database that were the subject of the assignment

9. cabot case history on the account, logging correspondence

10. A one page DCA statement from the date of taking the account to the date original claim was issued.

 

Can anyone see a big hole in this evidence bundle which means I can get this Claim thrown out . Is there something I can ask for that it looks like the Claimant might not be able to provide that would do this?

Edited August 1, 2012 by citizenB

[Jasper1965]

Can anyone see a big hole in this evidence bundle which means I can get this Claim thrown out . Is there something I can ask for that it looks like the Claimant might not be able to provide that would do this?

 

There's a little more to it than a magic card MP. At what stage of litigation is this at please?

Have they gone straight for SJ on the back of your defence or has this come after an allocation questionairre?

[MarathonPaul]

Hi Jasper

 

Potted history:

 

Claim issued 12 mths ago, I filed defence of statbarred.

Then came allocation questionnaire, sent back. Waited. Claimant offered mediation, i refused because of costs, this was 10mths ago.

Last week Claimant went to court to get case unstayed with a view of getting SJ based on new evidence showing debts not statbarred.

 

I am now putting together my thoughts on this. One debt on the claim is still clearly statbarred, and they have provided no evidence to the contrary.

 

 

With regard to the other debt on the claim, I outlined there evidence in my last post.

 

What do you think Jasper?

Edited August 1, 2012 by citizenB

[Jasper1965]

Okay thanks for the update.

 

You have entered a SB defence to the claim.

The claimant has then provided no evidence to prove that one account is SB'ed and has provided spurious evidence relating to the other.

As the two accounts are being claimed on a single claim this is not suitable for summary judgment to be made in the claimants favour.

 

You need to object to an SJ on the grounds that the claimant has failed to disprove your assertion that the account (1) is SB'ed in fact they have provided evidence which actually supports this assertion.

The evidence provided in respect of account (2) does not tally with your recollection or your own records and is a standalone record produced on the claimants own system without provenance. Such a standalone record has already been entered into evidence to "prove" a payment was made on account (1) this has subsequently been shown not to have been accurate in the other statements.

 

I suggest this claim cannot fairly be dealt with by summary judgment and will definitely need to be heard. But you must resist the SJ application.

 

I would get Claimant to confirm how the payment was made ie card number, bank account number payer id etc. then SAR the relevant bank and compare cabots claims to the facts provided by the bank.

 

If you really suspect foul play then you might think about making an offer to settle with Claimant along the lines of "I'll let you discontinue if you meet my costs to date else I'll appoint a very expensive solicitor to walk into court with my original bank statements from the period and apply for costs on an indemnity basis"

 

 

How much were the mystery payments for BTW my guess is a low amount £10 is common may just be a £1?

Edited August 1, 2012 by citizenB

[MarathonPaul]

Hi Jasper

 

That sounds great, what you say.

 

I registered the original defence via the moneyclaim site, which of course is no longer updated with the latest developments on the claim as it has been allocated to the court.

 

Which forms do I need to fill in to resist SJ?

 

The alleged payment was for 50 pounds by the way. What level of scrutiny would the district judge apply in ascertaining whether the payment is legit of spurious?

[citizenB]

You have the opportunity to offer up a Witness statement in response to the SJ application - You should say there why you think that they should not be permitted to obtain a summary judgment and that there are triable issues.

 

You need to have your statement with both the court and the claimant 7 clear days before the hearing.

 

You should sign the statement with a Statement of Truth.

 

HTH

[Jasper1965]

You don't need a form just enter a witness statement in the format "In the XXX Court between xxx and xxx case number xxx" and signed with a statement of truth containing the reason(s) why SJ is not appropriate.

 

You are entitled to apply for your costs btw.

 

"What level of scrutiny would the district judge apply in ascertaining whether the payment is legit of spurious?"

 

None whatsoever unless you make it your business to cast doubt into their mind. The claimant has made assertions under a statement of truth a judge will take these to be true. If in your defence you categorically denied making such payments then they would need looked at, I suspect that you weren't aware of them at the time you filed either your defence or aq.

 

The statement you send to contest an SJ can be your friend here. It gives you a very good opportunity to introduce the authenticity of the payments to the legal proceedings at no cost.

 

The claimant denies the claim to be sb'ed on the basis of a payment being made on xx/xxxx, the defendant had earlier in proceedings by virtue of entering an sb'ed defence denied making this payment. The claimant has entered no primae facie evidence to disprove the defendants assertion that this claim is barred by statute, but mystery payments of which the defendant has no recollection have appeared on the claimants own accounting system this despite the two accounts pursued within this claim being owned by different entities at the time of the alleged payments.

 

No documentation has been entered into the claim by either party which substantiates these mystery payments, the claimant has failed to provide any details of the circumstances in which these alleged payments were made and the defendant has no record from banking statements and card statements of that time of such payments being made.

 

If for no other reason the defendant is of the belief that a case for summary judgment which relies upon unsupported evidence provided by the applicant to wholly disprove a statutory defence is entirely unsuitable for summary judgment.

 

The defendant believes that where doubt exists over any part of a claim it is in the interests of justice that the matters which cannot easily be resolved as factual are dealt with at a hearing.

 

The defendant denies making the payments alleged, the defendant avers them to be unproven and respectfully requests that the Court sees fit to permit these and all other matters of contention to be dealt with at a hearing

[andydd]

Good advice above, as I said earlier I recently put in a SJ application so have a bit of an understanding, all you need to do is create at least some reason(s) why there should not be an SJ (SJ's can be given but the judge must be careful that it doesnt override someone right to justice as doing so may contravene right to justice and human rights issues).

 

All you are required to do is present your Statement Of Case within the CPR 24 rules which is SEVEBN working days before the hearing.

 

In my case the 7 days came and went and the defendant to my SJ didnt send a repsonse, this was fatal for him, the judge said 'where is your defence/evidence', he mumbled about wanting a stay but I said 'No', so judge gave SJ in my favour there and then (I was arguing on re-litigation/abuse of process issues).

 

Andy