2 claim forms received today from Northampton County Court

[loobie79]

Hi all, thought no news was good news but ive received a letter from Restons today saying that the court has served them with a copy of the defence I recently filed, and they have listed 2 points of my defence with responses. They have enclosed the signed credit agreement dated in 2004 and also a copy of a letter I have never received from Marlin Europe II Limited dated 13 November 2012 basically saying that they had assigned the debt.

 

It says on the bottom of the letter that in their view my defence has no prospect of success and our instructions are therefore to make an application to strike out the defence/for summary judgement and to seek an order that you pay our clients legal costs on a contractual(indemnity) basis. In order to avoid this, we invite you to withdraw your defence to these proceedings by completing the enclosed form N9A and returning it to this office within the next fourteen days.

 

My defence was only so vague as I hadnt received any response from either Marlin or Reston on request of both CPR and section 77/78 requests.

 

Do I respond to this letter?

 

Thanks in advance

Loobie

[AndyOrch]

Hi loobie 25/March/2013

 

Ok you now need to type out (verbatim) each of the Particulars of Claim..then we can draft 2 x defences for input tomorrow into MCOL.

 

Regards

 

Andy

 

 

Without sight of what you actually submitted loobie its difficult to advise on its merits...I did offer as per above.

 

Regards

 

Andy

[loobie79]

Hi Andy,

I know you offered but I had submitted my defence before you posted I panicked as no-one had replied to me for a few days and I didn't want to miss the dead line.

 

My defence was as follows:

 

1. I XXXX am the defendant in this action and make the following statement as my defence to the claim made by Marlin Europe II Limited Ltd.

 

 

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

 

 

3. The claimants Particulars of Claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the Civil Procedure rules. (Even allowing for the constraints of the bulk issue system)

 

 

 

4. No documents supporting the claim in the particulars have been offered nor has any date of contract been stated which the defendant needs to establish what contract it is that this action is based upon and so the claimant's claim appears without merit. I have requested said documents and have received no response.

 

 

 

5. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I am at a disadvantage to respond to this claim and to allow me to properly respond to the claim.

 

 

 

6. If the Claimant is the Assignee and there has been an Assignment, it is contended that no such Notice of Assignment pursuant to the Law of Property Act 1925 has ever been received. Without a Notice of Assignment, the Assignment is merely equitable and the Claimant is put to strict proof to disclose this and proof that this claim can commence in their own name

 

 

 

7. Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

 

 

 

AND the Defendant

 

 

 

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

 

 

 

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

 

 

 

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

these are the points they have made today:

 

1: The claim was issued via the County Court Bulk Centre which is a procedure specifically provided for in the CPR. The procedure only allows the claimant to insert brief details of the claim and does not allow for the attachment of any enclosures. In any event, paragraph 5.2A of Practice Direction 7E specifically states "the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this Practice Direction".

 

2: The outstanding balance referred to in the particulars of claim relates to a personal loan account with account number XXXXX. The original credit agreement between you and Lloyds was dated on or about 23 March 2004 (copy enclosed).

 

Loobie

[AndyOrch]

Give me time to consider Loobie and I will get back to you with what options are now open to you.

 

Regards

 

Andy

[AndyOrch]

Your defence is really an holding defence and as such is easily refuted by the claimant.Their response even though partially a templated reply but their threat of Summary Judgment should be given great consideration.

 

That is all it is at this stage as they have asked you to complete the N9A Admittance which would allow them to proceed to judgment without further costs.

 

Making application for Summary judgment would require further costs and also representation at the hearing.

 

Here is the relevant CPR that covers summary judgment for your perusal :- http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

 

At the moment the claim is stayed ...neither party have submitted DQs...so until such time they make that application or respond officially through the court ...it will remain that way.

 

If they do make application then you should be served a copy of the Application N244 and details of the hearing.

 

With what they have disclosed Loobie do you still consider this matter a defendable claim?

 

Regards

 

Andy

[loobie79]

Thanks for your help again Andy! To be honest I do owe the money and if I had it I would pay it - not all of it as a proportion of it is charges

I just feel that they haven't done things fairly, I have never received any letters from Marlins and I believe they panicked as it was not long until the debt was statute barred.

I can't afford to pay additional costs so it looks like I will be filling in the N9

 

Loobie

[loobie79]

Sorry to be a pest, but before I fill out the admission form should I write to Restons and state that the reason my defence was vague is because I have yet to receive responses from them in regards to my CPR and section 77/78 requests?

 

Regards

Loobie

[AndyOrch]

Sorry to be a pest, but before I fill out the admission form should I write to Restons and state that the reason my defence was vague is because I have yet to receive responses from them in regards to my CPR and section 77/78 requests?

 

Regards

Loobie

 

But they have responded Loobie ......" Hi all, thought no news was good news but ive received a letter from Restons today saying that the court has served them with a copy of the defence I recently filed, and they have listed 2 points of my defence with responses. They have enclosed the signed credit agreement dated in 2004 and also a copy of a letter I have never received from Marlin Europe II Limited dated 13 November 2012 basically saying that they had assigned the debt. "[/i]

 

Thats why I asked if what they have disclosed ...do you still wish to defend?

[loobie79]

Hi Andy, aww I don't know what I'm doing to be honest. I know they've sent them now but I requested this back in March and have read that they were meant to reply within a certain time (weeks not months). Also the credit agreement is unreadable, I just don't want to make things easy for them so I'm just clutching at straws I think

Loobie

[AndyOrch]

If they cant disclose a legible copy then you can argue: -

 

the agreement is difficult to read and illegible and as such would make the agreement unenforceable in a court of law as specified in The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

Regulation 2 states:

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signatureicon, be easily legible and of a colour which is readily distinguishable from the .

 

Regards

 

Andy

[loobie79]

So before I decide anything shall I write to Restons and ask them for a better copy of the agreement?

[AndyOrch]

No harm...whether they will respond is another matter...or do nothing and wait for any application for SJ or Notice from the court that they wish to proceed.

[loobie79]

Hi Andy, Ive received a notice of transfer of proceeding today

 

it says

 

To all parties, This claim has been transferred to .... County Court for that court to deal with the claimants application for summary judgement

That court will send you and the other parties notice of the time date and place of hearing.

 

Do I do anything now or just wait to hear from my local Court?

 

Thanks

Loobie

[AndyOrch]

So they have kept to their word and made application for Summary Judgment.

 

Basically its a device used during civil litigation to promptly and expeditiously dispose of a case without a trial. It is used when there is no dispute as to the material facts of the case and a party is entitled to judgment as a Matter of Law.

 

Two criteria must be met before summary judgment may be properly granted:

 

(1) there must be no genuine issues of material fact, and

(2) the Movant must be entitled to judgment as a matter of law. A genuine issue implies that certain facts are disputed. Usually a party opposing summary judgment must introduce evidence that contradicts the moving party's version of the facts.

 

Moreover, the facts in dispute must be central to the case; irrelevant or minor factual disputes will not defeat a motion for summary judgment.

 

Finally, the law as applied to the undisputed facts of the case must mandate judgment for the moving party. Summary judgment does not mean that a judge decides which side would prevail at trial, nor does a judge determine the credibility of witnesses. Rather, it is used when no factual questions exist for a judge or jury to decide.

 

The moving party has the initial burden to show that summary judgment is proper even if the moving party would not have the Burden of Proof at trial. The court generally examines the evidence presented with the motion in the light most favorable to the opposing party. Where the opposing party will bear the burden of proof at trial, the moving party may obtain summary judgment by showing that the opposing party has no evidence or that its evidence is insufficient to meet its burden at trial.

 

Take a read here from the Civil Procedure Rules this explains the mechanism :-

 

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

 

You are allowed to submit a Witnes Statement in response and objection as to why their application is not suitable...and I have stated one reason in post#85 above.

 

Regards

 

Andy

[loobie79]

Thanks for your reply Andy, Ive read on other threads about witness statements but im confused as to when I send this - do I wait yet again for something from the courts and then send it? Cant believe this has been dragging on since February all goes quiet for months then bang!

 

Regards

Loobie

[AndyOrch]

You should receive a copy of their application N244 (and WS in support)...usually it comes with the Notice you have received above......check with the court and request a copy

[loobie79]

All ive received is one A4 piece of paper in a brown envelope nothing more, do I ring Northampton Courts?

Cheers

Loobie

[AndyOrch]

Yes Loobie explain that they have inadvertently forgot to include a copy of their N244 and Witness Statement therefore preventing you to respond with your own WS.

[loobie79]

on another thread it says that aq will be sent from my local court not northampton so should I wait to hear from them?

 

im going to be so amazing in court total airhead

[AndyOrch]

They may include it with the DQ...but if they dont.... then you need to concious of the time frame...ie when is the hearing for SJ and you must submit that WS pre 7 days before the hearing.

[loobie79]

Hi again Andy, I rang the court and they are sending me the relevant forms. On checking the claim number on the notice of transer of proceedings its not even for the claim that Restons previously wrote to me about - they are totally frying my head

 

Its for the joint claim of the credit card and overdraft which has been transferred not the one they sent me the cca for (loan) - I have received no documents from Restons regarding this claim as yet so Im still none the wiser on filing my witness statement.

 

Can you help?

 

Regards

Loobie

[AndyOrch]

If you could post up a copy of their N244 and WS loobie once received and we can take it from there.

 

Regards

 

Andy

[loobie79]

Hi again, I received the application notice today and cant switch my laptop on to enable me to upload the scan so i will just type out what it says from number 3.

 

3. What order are you asking the court to make and why?

1. An order to lift the stay on these proceedings; and

2. An order to strike out the Defence pursuant to CPR 3.4(2) of the Civil Procedure Rules on the basis that it discloses no reasonable grounds for defending the claim and/or is an abuse of the Court process; or

3. In the alternative to (2) above, an Order for Summary Judgement against the Defendant under Part24.2 of the Civil Procedure Rules. The Defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the case should be disposed of a trial; and

4. An order that the Defendant do pay the Claimants costs on a contractual(indemnity) basis, pursuant to CPR 44.5.

 

4. Have you attached a draft of the order you are applying for? - NO

 

5. How do you want this application dealt with? - At a hearing

 

6. How long do you think the hearing will last - 40 minutes

is this time estimate agreed by all parties? - No

 

7. Give details of any fixed trial date or period - left blank

 

8. What level of Judge does your hearing need? - District Judge

 

9. Who should be served with this application? - Me

 

10. What information will you be relying on, in support of your application? - The attached witness statement ????? There is nothing attached

 

TAKE NOTICE THAT IF THE RESPONDENT TO THIS APPLICATION FOR SUMMARY JUDGEMENT WISHES TO RELY ON WRITTEN EVIDENCE AT THE HEARING , IT MUST FILE A WITNESS STATEMENT AND SERVE COPIES ON THE CLAIMANTS SOLICITORS, MESSRS RESTONS, OF TRINITY CHAMBERS, 800 MANDARIN COURT, CENTRE PARK, WARRINGTON, CHESHIRE, WA1 1GG AT LEAST SEVEN DAYS BEFORE THE DATE SET FOR THE SUMMARY JUDGEMENT HEARING.

 

Statement of truth Signed by Laura Tipping

 

Still absolutely none the wiser with what they have from this

 

Loobie

[citizenB]

If this has come from the court, then you might want to ask if they have provided you with everything they have.

[AndyOrch]

So the Witness Statement is missing...perhaps ring Missy at Pestons and ask for it...... also why was you not served a copy in the first place?

 

Have you got the date of the hearing yet Loobie?

 

Regards

 

Andy