Off topic posts from "Getting them to Reveal their Vitals"

[cab1ne]

cab1ne..your agreement number is visible in the POC..you need to take it down and edit asap..

 

Elsa x

 

 

cab

[cab1ne]

But first things first...In order to avoid any judgements by default should s/he not 'file an acknowledgement of service'. under Part 10:Paras 1,2 and 3..and then take it from there!

 

m2ae

 

date of issue is 02, (+ 5 days) so do i need to aknowledge on monday 07 and then do i get 28 or 14 days to submit a defence.

 

cab

[means2anend]

date of issue is 02, (+ 5 days) so do i need to aknowledge on monday 07 and then do i get 28 or 14 days to submit a defence.

 

cab

 

 

10.2 Consequence of not filing an acknowledgment of service

 

If –

 

(a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3;

 

and

 

(b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14, the claimant may obtain default judgement if Part 12 allows it.

 

10.3 The period for filing an acknowledgement of service

 

(1) The general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

 

10.4 Notice to claimant that defendant has filed an acknowledgment ofservice

 

On receipt of an acknowledgment of service, the court must notify the claimant in writing.

 

10.5 Contents of acknowledgment of service

 

(1) An acknowledgment of service must –

(a) be signed by the defendant or the defendant’s legal representative; and

(b) include the defendants’ address for service.

 

 

Cab1ne they're particulars of claim were served within the claim form and so

 

10:3 para (b) above would apply:in other words after taking into account postal service 2 working days.It was issued on 2nd June therefore AFTER SERVICE would be 5th which would be beginning of the 14 days countdown!!!

 

Looking at no later than Fri 18th June 2010 or at the very latest Monday Morning 21st June 2010.

Edited June 5, 2010 by means2anend

[RobinWayRobinme]

Personally, I would use 31.14 for the agreement, NOA, DN, and copy statements showing how alleged debt has been determined, givings 7 days. I would at same time serve Part 18 Request asking (a) Do they have the original agreement they are relying upon, (b) What date was the Defendant served with the NOA, © Does the Claimant have a Post Office recorded delivery or specialdelivery receipt as proof of posting of NOA as required by s.196 the Law of Property Act 1925.

 

I would ask them to agree to extending the time to file the defence by 28 days (CPR 15.5) as you are unable to prepare the defence until copy doc recd and questions answered, pointing out that should they not agree they will leave you no alternative to deal with matters by application.

R

 

Nice illustrations on the use of CPR's and their applications.

 

In relation to cab1ne claim form it is not specific in certain areas .

 

Would you agree with me that A CPR 18 should be used in this instance at this particular juncture in his/her proceedings? -And then to file an extension for the defence under CPR 15:4

 

OR...

 

.... No messing about and a straight to the point STRIKE OUT?

 

m2ae

Edited June 5, 2010 by RobinWayRobinme
added more

[cab1ne]

10.2 Consequence of not filing an acknowledgment of service

 

If –

 

(a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3;

 

and

 

(b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14, the claimant may obtain default judgement if Part 12 allows it.

 

10.3 The period for filing an acknowledgement of service

 

(1) The general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

 

10.4 Notice to claimant that defendant has filed an acknowledgment ofservice

 

On receipt of an acknowledgment of service, the court must notify the claimant in writing.

 

10.5 Contents of acknowledgment of service

 

(1) An acknowledgment of service must –

(a) be signed by the defendant or the defendant’s legal representative; and

(b) include the defendants’ address for service.

 

 

Cab1ne they're particulars of claim were served within the claim form and so

 

10:3 para (b) above would apply:in other words after taking into account postal service 2 working days.It was issued on 2nd June therefore AFTER SERVICE would be 5th which would be beginning of the 14 days countdown!!!

 

Looking at no later than Fri 18th June 2010 or at the very latest Monday Morning 21st June 2010.

 

thanx m2ae

 

i understand all that now:-) the only slight difference is the date of service is +5 days after issue and not 2 working days (its on the back of the POC).

 

what i am actually having difficulty with is, the POC mentions the document(s) to which they would be relying on.

 

1. the Agreement

2. the Assignment

3. the Notice Of Default

4. the Termination

 

also a confusing statement saying, the Agreement terminated upon the defendent(s) failure to comply with the terms of the Agreement and/or the statutory Notice Of Default served by Barclays Bank t/a Barclays Partner Finance.

 

i know diddly sqwat, zilch, about any of the above, never had any dealings with Barclays. my point being, when i do submit the acknowledgement of service (on-line) i intend to defend all of this claim. WTF would i be defending:confused:

 

what in your or anybody elses valued opinion would be the best way to obtain this information in order for me to submit a defence at a later date.

 

cab

[RobinWayRobinme]

You don't know what you defending until you receive copy docs and answers to questions, hence file acknowledgement of Service, fire off 31.14 request for copy doc and pArt 18 Request with questions. Until you get the answers back there is little else you can do, appart from dealing with all by way of application if you get nothing back in 7 days.

R

PS suggest you get you own thread setup so all advice is relevant to you and in 1 place.

thanx m2ae

 

i know diddly sqwat, zilch, about any of the above, never had any dealings with Barclays. my point being, when i do submit the acknowledgement of service (on-line) i intend to defend all of this claim. WTF would i be defending:confused:

cab

[cab1ne]

You don't know what you defending until you receive copy docs and answers to questions, hence file acknowledgement of Service, fire off 31.14 request for copy doc and pArt 18 Request with questions. Until you get the answers back there is little else you can do, appart from dealing with all by way of application if you get nothing back in 7 days.

R

PS suggest you get you own thread setup so all advice is relevant to you and in 1 place.

 

thanx R,

 

my own thread on this will be a definite, just needed a kick start in the right direction:) and yet again CAG has supplied;)

 

cab

[bustthematrix]

my own thread on this will be a definite, just needed a kick start in the right direction:) and yet again CAG has supplied;)

 

cab

Cab1ne

 

Once it's up, please post a link to your own thread back here as it makes it easier to jump there to assist you.

 

rgds

Btm

[means2anend]

You don't know what you defending until you receive copy docs and answers to questions, hence file acknowledgement of Service, fire off 31.14 request for copy doc and pArt 18 Request with questions. Until you get the answers back there is little else you can do, appart from dealing with all by way of application if you get nothing back in 7 days.

R

PS suggest you get you own thread setup so all advice is relevant to you and in 1 place.

 

Yes!

 

I totally agree with the order to take as stated above!

 

My other concern is that cab1ne mentioned that no other paperwork was received...was there any attempt by them to undergo pre-action conduct before this claim form was issued because of course that is the route for both parties to take before any litigation.It all seems abit back to front...

 

If they have simply banged off the claim form then they may be in for costs sanctions.

 

m2ae

[cab1ne]

Yes!

 

I totally agree with the order to take as stated above!

 

My other concern is that cab1ne mentioned that no other paperwork was received...was there any attempt by them to undergo pre-action conduct before this claim form was issued because of course that is the route for both parties to take before any litigation.It all seems abit back to front...

 

If they have simply banged off the claim form then they may be in for costs sanctions.

 

m2ae

 

thats the "nail on the head" BACK TO FRONT,

 

cab

[Pupter]

subbing as having similar probs to above.

[manchestman]

Cor, now you - and other posters - have got me thinking - and wondering - about CPR 31.14/15 requests. I'd followed surfaceagentx20's lead at the top of this thread and hadn't questioned his advice. But prompted by what you said I've had another look, and now I'm not so sure.

 

This thread is about getting a look at - and maybe a copy of - specific documents that the claimant seems to rely on, so you can understand his arguments and the strength of his case, to enable you to decide to admit or defend the claim and perhaps review your tactical options.

 

To unpick this a bit (with apologies for repetition from previous posts):-

 

CPR 31 generally covers disclosure of documents that the parties refer to (presumably because they are relevant to the case, else why mention them).

 

CPR 31.2 defines "disclosure":

"A party discloses a document by stating that the document exists or has existed."

... extended by 31.11:

"(1) Any duty of disclosure continues until the proceedings are concluded.

 

(2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party."

I would think that just mentioning a document amounts to "stating that [it] exists or has existed" (how can you mention a non-existent document?), so a document mentioned under 31.14(1) is disclosed by 31.2.

 

Inspection of disclosed documents after the claim has been issued is covered in CPR 31.3:

"(1) A party to whom a document has been disclosed has a right to inspect that document except where –

(a) the document is no longer in the control of the party who disclosed it;

(b) the party disclosing the document has a right or a duty to withhold inspection of it; or

© paragraph (2) applies.

(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) –

(a) he is not required to permit inspection of documents within that category or class; but

(b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate."

[

Note

: 31.6(b) refers to documents ordered under Standard Disclosure via 31.5(1) which

"(i) adversely affect his own case, (ii) adversely affect another party’s case or (iii)

support another party’s case"

]

... and 31.14(1):

"A party may inspect a document mentioned in –

(a) a statement of case;

(b) a witness statement;

© a witness summary; or

(d) an affidavit."

... and 31.15:

"Where a party has a right to inspect a document –

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request."

From the above, 31.3 & 31.14 seem merely informative, identifying which documents can be inspected; 31.15 enables the other party to inspect (and/or get a copy of) them.

 

So, while endorsing everything else SAx20 says in post #1, I think inspection and/or copying requests should really be made by notice under 31.15, referring to the right to inspect in 31.3 and/or 31.14. Thus there is no need for a separate 31.14 request, and no need to wait before submitting a 31.15 notice.

 

I don't see any requirement or need for the court to order compliance with 31.15. In fact the claimant's non-compliance would be to your advantage. If he fails to disclose a document at any time, or to permit inspection within a week, 31.21 bars him - without very good reason - from relying on it:

"A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission."

... and failure to disclose, allow inspection of or supply a copy of any document is a breach of the Rules, when 3.4(2) & (3) kick in:

"(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate."

Note that "any consequential order" in (3) includes a costs order. You will probably have to apply for the court to act under 3.4(2) & (3). Or you could merely write to the court saying the claimant failed to comply (which would thus "appear to the court") and ask it to exercise its powers to strike out and order costs.

 

Note too that all the above provisions apply to both parties, so you must allow the claimant to inspect and/or copy any documents you mention; should help to cut down the paperwork.

 

... But this is just my view; I'm sure SAx20 and other knowledgeable CAGgers will point out the flaws in it!

 

Although I am so very grateful for all advice received I also went back to the original doc, as Paul [pt2537] always suggests, which is why I requested inspection AND copy under 31.15. Of course, I don't expect to get it! (No original agreement as we understand it and only application held on microfiche somewhere and absolutely totaly unreadable)

[colin21958]

The CPR 31.14 and 31.15 references should not be mixed. By this I mean a 31.15 request should be kept completely seperate to any other letter, what you're considering using is powerful and demands to be issued by itself, after 31.14 has been issued and ignored.

 

So...sit tight on the 31.15 and see if they comply with the 31.14 first. Only issue the 31.15 if you are immediately prepared to make an application to the court to ask for an enforcement of this request. Important the 31.15 is used correctly.

 

 

This was what emandcole said on one of my threads; this was what I was relying on for the posts I made here... Other comments welcome...

[Meldrew]

... I also went back to the original doc, as Paul [pt2537] always suggests

... me too.

Originally Posted by emandcole

The CPR 31.14 and 31.15 references should not be mixed. By this I mean a 31.15 request should be kept completely seperate to any other letter, what you're considering using is powerful and demands to be issued by itself, after 31.14 has been issued and ignored.

 

So...sit tight on the 31.15 and see if they comply with the 31.14 first. Only issue the 31.15 if you are immediately prepared to make an application to the court to ask for an enforcement of this request...

'fraid I disagree with emandcole - see#421 for reasons (correction/s welcome - with explanation).

Originally Posted by emandcole

... Important the 31.15 is used correctly.

... but I'm right with him there (#421 again)!

[eagleforms]

I used the template CPR31.14 letter on this site and that also talks about CPR31.15. From gist of the posts lately on here, there would appear to be some doubt about including CPR31.15 in the same letter. I hope that I have not c..ked up my defence!

[RobinWayRobinme]

I think that the debate about 31.14 and 31.15 is being made overly complicated. Quite simply, 31.14 states what docs you have a right to inspect and 31.15 states how it is done. The request you make is a 31.14 Request and if they don't comply you have a right to obtain an order that the documents are disclosed by application and you would be seeking costs in doing so.

R

[colin21958]

OK, here's a question...

 

Part 31 relates to documents "disclosed", i.e., mentioned in particulars of claim or subsequently in some other form. What about documents NOT mentioned, but which it is clear should exist? E.g., if an account has been terminated, then clearly they should have issued a Default Notice. However, no mention is made of a Default Notice and when questioned about it they respond with "No default notice was required"?

 

This has happened to me because the OP are claiming that the credit limit was set to zero and so the full balance became "arrears" by the terms of the contract. The actual term they quote, whilst very difficult to read on the illegible copy I have, I think could be interpreted that way, however, I have maintained with them that simply setting a credit limit to zero is not permitted by the terms of the CCA 1974. They continue to insist that they can and therefore refuse to provide a Default Notice (which clearly has never been issued; and they are trying their socks off to get around this point!)

[RobinWayRobinme]

Ask the question an a Part 18 Request. e.g. Was the defendant served with a Default Notice in accordance withe the CCA? If yes what date was the defendant served with the DN?

 

If in situation where "No DN was required", ask the question why?

 

Only occassion IMO a DN not required is with loans where arrears equal total debt.

 

When they disclose a DN by Reply (signed by a statement of truth) 31.14 off for a copy.

R

 

OK, here's a question...

 

Part 31 relates to documents "disclosed", i.e., mentioned in particulars of claim or subsequently in some other form. What about documents NOT mentioned, but which it is clear should exist? E.g., if an account has been terminated, then clearly they should have issued a Default Notice. However, no mention is made of a Default Notice and when questioned about it they respond with "No default notice was required"?

 

This has happened to me because the OP are claiming that the credit limit was set to zero and so the full balance became "arrears" by the terms of the contract. The actual term they quote, whilst very difficult to read on the illegible copy I have, I think could be interpreted that way, however, I have maintained with them that simply setting a credit limit to zero is not permitted by the terms of the CCA 1974. They continue to insist that they can and therefore refuse to provide a Default Notice (which clearly has never been issued; and they are trying their socks off to get around this point!)

Edited June 8, 2010 by RobinWayRobinme
aded to

[colin21958]

If in situation where "No DN was required", ask the question why?

 

This is what they have stated in letters, when I asked why they said that the credit limit had been set to zero and therefore (under a term of the contract which is impossible to read on the copy I have) the full balance became due and is therefore now arrears!

 

I don't think they can do this, and others have also said the same; however, no one has really been able to say why they can't! I would appreciate a cast iron legal argument to throw back at them; I've already said that the only term under the CCA which allows future payments to be claimed sooner is s87 and that a default notice is required first. However, they are claiming that because the credit limit is set to zero the full amount is not a future payment. What I need is some clause in the CCA which clearly states that they cannot just set the limit to zero and claim the outstanding balance (clearly changing the limit is perfectly acceptable under the CCA, but what happens if the credit limit is set below the outstanding balance?) I have heard from a few others that this is a new "technique" they are trying out to avoid the defective Default Notice problem...

[lexis200]

I can't give you an answer to that one colin but I'm with you that I don't believe that's an option open to them! Having said that a quick google on 'credit limit reduced to below balance' shows that it is legal in the US....

 

Also, their argument is a little off, as if they knowingly set the limit to less than the balance of the account, they will be well aware they are in fact making undue payments due by their actions.

 

What I would say though is that surely the same rule that makes them inform you at least 30 days prior to changes not in your favour (ie interest hikes) would apply to a massive change such as limits going below your balance?

[RobinWayRobinme]

I see what you are saying. Off the top of my head, I would say that by reducing the limit in this way and thereby not allowing the credit already freely provided by the creditor to the debtor up to the credit limit at the time under the terms of the agreement still is an unlawful recission of the agreement. To do this IMO would require a DN according to the CCA as the default would be the reason for the credit being removed and demanding earlier repayment. I think its the "earlier repayment" that is relevant.

 

It would be interesting to see if any creditor has been successful in court using this tactic or whether they are just using it as a weapon to make a debtor believe they cannot defend.

 

I'll look further on this as it could apply to one of my creditors as well (for warned is for armed as they say). Other opinions on this needed I think.

 

This is what they have stated in letters, when I asked why they said that the credit limit had been set to zero and therefore (under a term of the contract which is impossible to read on the copy I have) the full balance became due and is therefore now arrears!

 

I don't think they can do this, and others have also said the same; however, no one has really been able to say why they can't! I would appreciate a cast iron legal argument to throw back at them; I've already said that the only term under the CCA which allows future payments to be claimed sooner is s87 and that a default notice is required first. However, they are claiming that because the credit limit is set to zero the full amount is not a future payment. What I need is some clause in the CCA which clearly states that they cannot just set the limit to zero and claim the outstanding balance (clearly changing the limit is perfectly acceptable under the CCA, but what happens if the credit limit is set below the outstanding balance?) I have heard from a few others that this is a new "technique" they are trying out to avoid the defective Default Notice problem...

Edited June 8, 2010 by RobinWayRobinme
just added more

[colin21958]

I can't give you an answer to that one colin but I'm with you that I don't believe that's an option open to them! Having said that a quick google on 'credit limit reduced to below balance' shows that it is legal in the US....

 

Also, their argument is a little off, as if they knowingly set the limit to less than the balance of the account, they will be well aware they are in fact making undue payments due by their actions.

 

What I would say though is that surely the same rule that makes them inform you at least 30 days prior to changes not in your favour (ie interest hikes) would apply to a massive change such as limits going below your balance?

 

I agree, but need to find a cast iron argument.

 

One other thing, it was the original credit that reduced the credit limit (obviously because I stopped paying them), they then sold the debt on to a DCA, however, they still claim that they have not defaulted the account. Now, obviously they don't HAVE to default an account to sell it on; that happens all the time with live accounts being sold between companies, so, even though many people on here say as soon as a debt is sold to a DCA it is "terminated", I don't think that is necessarily so, and indeed, would be difficult to argue in court.

 

Does anyone else "in the know" have any suggestions/comments? Thanks.

 

Colin

[lexis200]

There is a difference between creditors selling accounts to other creditors and a creditor selling an account to a DCA, namely that the DCA does not hold a credit license and can not offer you a line of credit.

 

This is why it's seen as terminated if it's sold to a DCA, as you can no longer use the card as a running credit account. If it's sold to another bank they can keep your credit going so the account needn't be terminated.

 

Of course you have to make sure it has been sold and is not just being managed by the DCA - sometimes getting them to make the distinction is a fight in itself:rolleyes:

[colin21958]

I see what you are saying. Off the top of my head, I would say that by reducing the limit in this way and thereby not allowing the credit already freely provided by the creditor to the debtor up to the credit limit at the time under the terms of the agreement still is an unlawful recission of the agreement. To do this IMO would require a DN according to the CCA as the default would be the reason for the credit being removed and demanding earlier repayment. I think its the "earlier repayment" that is relevant.

 

It would be interesting to see if any creditor has been successful in court using this tactic or whether they are just using it as a weapon to make a debtor believe they cannot defend.

 

I'll look further on this as it could apply to one of my creditors as well (for warned is for armed as they say). Other opinions on this needed I think.

 

Yes, you would think that maybe there was a clause in the CCA that would state that this couldn't be done; but I can't find one. Of course the whole point of the "Agreement" is that a specified credit limit is set and you agree to pay interest on amounts borrowed up to that amount. To then suddenly withdraw this facility without notice (or even with notice!) seems to go against the "spirit" of the whole Act; the Act being there to protect the rights of the Consumer unless the Creditor follows the "rules" strictly; allowing such an action takes away any security the consumer has if the creditor can suddenly demand full payment like this!

[colin21958]

There is a difference between creditors selling accounts to other creditors and a creditor selling an account to a DCA, namely that the DCA does not hold a credit license and can not offer you a line of credit.

 

This is why it's seen as terminated if it's sold to a DCA, as you can no longer use the card as a running credit account. If it's sold to another bank they can keep your credit going so the account needn't be terminated.

 

Of course you have to make sure it has been sold and is not just being managed by the DCA - sometimes getting them to make the distinction is a fight in itself:rolleyes:

 

Yes, I understand what you are saying, but on the other hand, the creditor can (under the CCA) withdraw the provision of further credit without taking any default action, they can therefore "withdraw" the facility at will; though I don't see that this means they can demand the full balance. But anyway, if an account in this situation was sold on to a DCA (without defaulting the account), they could simply collect payments without allowing any further credit, so, they wouldn't need a credit license then...(?).