Arrow/Shoo's stayed claim since 09-13 - now going for Summary Judgement

[mylonite]

My Daughter has be hassled by Shoosmiths/ARC over an alleged debt with Egg,

 

this started in March 2011

several DCA's have written and to each we have sent a S78 request, and had nothing returned other than a blank 'example' agreement.

 

A couple of years ago Shoosmiths issued court papers to which I filed a defence on her behalf, pointing out that S78 had not been complied with and that a multitude of DCA's and solicitors had written a range of letters alleging debts but for a number of varying amounts.

Shoosmiths responded by withdrawing the court application,

 

out off the blue today we get a letter threatening an application for Summary Judgment, and wanting us to set up an agreement for repayment with them.

 

My Daughter had a nervous breakdown several years ago 2007/8 and genuinely has no recollection of these debts and I have been managing them on her behalf,

 

in may cases PPI has more than covered the debt but Shoosmiths have been particularly difficult to deal with and if this is a genuine debt then it will almost certainly have PPI attached to it, but apart from a bare minimum of information they have given me nothing to work with.

 

I feel like calling their bluff, but the amount they are claiming is around £2k0 and if genuine is not a single debt but a number rolled into one, or has a significant amount of charges added.

 

What would be my best course of action?

Thanks in advance.

[gregs07]

Invite you to withdraw your defence?? They know they've no chance else they'd have just steam rolled you in court spot of chancing their arm i think. Trying to get you to converse with them. If the statment the've enclosed is the last paymentbyou made in 2009 the debtbis no statute barred anyway. Their case is stayed i presume?

[mylonite]

Thanks for the reply, yes their case is stayed, as soon as I filed a defence they walked away. I have just looked at the defence I filed for the date, and that was in Sept 2013, I feel they are chancing their arm, as well but I can't be sure that its statute barred as the first correspondence I have from them is April 2011, although the debt is much earlier than that if it is genuine.

[BazzaS]

 

 

"Dear Sirs,

 

You have not supplied the information requested (complying with the S.78 request), nor confirmed the details of the sum alleged (you will note that we have received demands for a variety of different sums, none of which appear to take into account PPI and unlawful charges which mean that I still deny any sum is owed until proven). You have also not shown the the alleged debt is not statute barred.

 

Therefore I will oppose any application for summary judgment on grounds that:

a) The defendant has a real prospect of successfully defending the claim (as the court may decide that no monies are owed or the alleged debt is statute barred), so your application would be denied under CPR 24.2(a)(2) and, even if the court was not persuaded on this ground alone, in the alternate:

b) even if the court were to decide that monies were owed, that the sum needs to be decided by the court, giving a compelling reason for the case to go to trial (so your application would be denied under CPR24.2(b)

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24#24.2

 

If you persist in an application for Summary judgment, and it is denied (as it is likely to be on the CPR grounds set out above), then your client will not only be liable for the application fee, but my costs in dealing with this application, which I will ask the court to grant based on the outcome of the application."

 

Separately:

Has the case been allocated to a track? If so, dependant on when it was issued (before or after 6th April 2009), it may be in the fast track or multi track : both of these have more stringent requirements for disclosure than the small claims track, where you can require documents including those regarding PPI and charges ..........

[mylonite]

Thank you for the letter, very succinct, I will need to dig out the old paperwork and see if it had a track allocated, I don't recall anything but it was 4 years ago.

[mylonite]

OK, So I sent off a response to Shoosmiths based on BazzaS' useful letter, above and this is the very prompt response from Shoosmiths.

 

 

Am I correct in thinking that although they have filed a court claim, which is now stayed, this does not alter the fact that it is 6.5 years since the debt was acknowledged or a payment paid, which they have now usefully confirmed as being so, means that this is now a statute barred debt?

[Andyorch]

Thread moved to Financial Legal Issues.

 

Regards

 

Andy

[Andyorch]

So the agreement they refer to that was sent in 2012 was a blank reconstituted version of the agreement?

 

Can you please upload this and also a copy of the claimants Particulars of Claim.

 

Regards

 

Andy

[mylonite]

Uploaded as requested ANDY

[BazzaS]

The statute bar 'clock' stops (but isn't 'reset') when the claim is issued.

 

If it was a day before it was due to be statute barred when the claim was issued, it isn't statute barred until that claim is resolved. If the claim is withdrawn (rather than stayed), the clock restarts, and a day later it becomes statute barred. (if the claim succeeds, then statute bar doesn't kick in, and if it is defeated : it has gone).

 

However, when was the last payment?. Just because they say it was 2010, doesn't mean it was (or did you say it was in 2010??). Did they file the claim in 2013 / and if not, when?

 

When was the card taken out?

If before 6th April 2007, they won't be able to use a 'reconstituted agreement', but will have to provide a 'true copy', and often these show deficiencies sufficient to derail a court claim.

 

Interesting how they have said "go to Egg for the PPI", and ignored the possibility of unlawful charges (which would leave doubt as to the sums owed, if any!) completely.

 

More to follow : just seen OP's latest attachments have personal details showing

[BazzaS]

I've 'reported' the post with the attachments showing personal details, hopefully site team will hide them, and you can upload them again, suitably redacted.

 

I note that the agreement is from 2006, and has a "tick this box" in place of a signature. I'm not sure if this would suffice, and also (once re-uploaded), whether all the other 'prescribed terms' that must be present for it to be enforceable can be assessed.

[Mr.P]

Please rescan and upload documents with all identifying information redacted. This would include claim numbers, passwords, and bar codes in addition to your name & address.

 

Would also be advisable to remove the URL at the bottom of the agreement pages as it might be possible for the claimant to identify you.

[mylonite]

Oh well, I wasn't sure initially if it was or wasn't statute barred, I have no idea of the actual last payment and can only go on the statements they have supplied, which show it as Sept 2010, My daughter has no recollection of this at all so I am assuming it must be either a rolled up account of card+loan or a Loan account, its just too huge to be a card debt on its own I will re upload once the other ones are taken down

 

Sorry about that, hopefully all fully redacted now

 

[BazzaS]

How much was the September 2010 'payment'? any chance you can find out if there is a corresponding figure leaving your daughter's bank account?

 

It isn't unheard of for 'phantom' payments to appear, or £1 CCA / £10 SAR payments that aren't meant to go to the account 'acidentally' being applied to an account. No doubt, when this happens it is purely due to an administrative mishap, and no malicious intent to make it look like a statute bar date has been reset ..........

[Ford]

I have just looked at the defence I filed for the date, and that was in Sept 2013

what has happened since then up to their recent comms, have they just sat on it (let it stay) for 3ish years without doing anything.

one poss cld be arguing that they just issued the claim to stop the clock. poss case law re that issue, and maybe worth mentioning in addition to anything else shld it go to hearing. depends on the full circs. just a thought.

[mylonite]

Yes, nothing has been heard from them since I filed the defence and the court stayed the application.

[Andyorch]

A Fixed Sum loan agreement for £22K with a tick box and completed on line

 

No cancellation rights...so was this application made on Line ?

 

Its not even dated or has a name and address on it..no agreement number...its a pre contractual application

 

It states under the tick box that monies will not be released until you sign the enclosed agreement and return it...That is not the agreement.

 

They remain in default of your section 77 request.

 

Andy

[mylonite]

 

The Sep 2010 Payment was £73.37, but I don't have anything from bank accounts at that time.

 

They have only sent 2 years worth of annual statements one from May 2008- April 2009 which has an opening balance of £0.00 and a closing balance of £26.03 and one from Sept 2009 -Sept2010 which has an opening balance of £23136.21 and a closing balance of £22281.10.

 

The payments made were quite random and clearly not the full amounts, but Shoosmiths/Arrow have refused to provide anything else to show how the debt has accrued.

[Old Cogger]

then put them, to strict proof === how paid / by whom/ cash cheques/ on line from what account and when? no messing with them

[Andyorch]

Dont do anything and certainly dont withdraw your defence.....let them make application for summary judgment...the court will inform you if and when they do...but they had better get a copy of the agreement first.

 

Andy

[mylonite]

we have now been notified that an application for the stay to be lifted has been made, and we have a raw outline of the points they wish to make, but no supporting evidence from them which they refer to as TZP1 in their particulars.

 

Am I right in thinking that I just need to refute their particulars of claim, with evidence, or is there another slant I could take?

 

They still claim that they have satisfied the S78 request, but still no statements showing how the debt accrued.

summary judgement N244.pdf

Edited March 29, 2017 by dx100uk
8Mb file reduced to <1Mb - dx

[dx100uk]

no harm in ringing the Canadian square egg address and asking when the last payment was made

the CCA return is bogroll

it clearly says they will send you an agreement to sign and return..wheres that?

 

 

this claim is solely being made because they see a £21k profit to their pocket if they win.

[mylonite]

Thanks DX100uk but what does that achieve? I would guess that the date of Sept 2010 is correct as that would tie in with my daughters illness. As thus has been stayed for the last 3 years the clock has effectively stopped as Bazza said?

[dx100uk]

sb clock has stopped yes

but

its worthy to note post 16

but they've NOT complied with the CCA so....

dead in the water

[mylonite]

So do I just need to address the points in their submission one by one and emphasise that they have still not complied with the original request, the original docs also show that the PPI box was ticked, is that relevant to the defence?