Erudio/Drydens claimform - old SLC Loans - Now N244 for strikeout & SJ.

[Andyorch]

Quote

2.     This debt was pursuant to a regulated agreement(s) between the Defendant and The Student Loans Company Limited. Each agreement had an individual account number as follows: (Note: No account numbers given)

 

1.     Paragraph 2 is noted. I have had financial dealings with The Student Loans company in the past.  I do not recall the precise details or agreements nor does it appear the claimant having failed to list the accounts numbers within its particulars. I have therefore sought verification from the claimant with regards to the account and have yet to comply with my requests for further information.

 

 

Andy

[Andyorch]

Same action here :-

https://www.consumeractiongroup.co.uk/topic/447393-erudiodryden-claimform-old-slc-loan/page/3/#comments

You need to sub and follow the above topic.

[Andyorch]

You have the claimants statement as guidance and what points they will rely on and support their application for Summary Judgment and strike out of your defence.

Simply respond to each point by paragraph as to why the application should be dismissed.

PS your statement of truth is out dated

 

2.2 The form of the statement of truth verifying a witness statement should be as follows: “I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

[Andyorch]

It does not require legalese simply respond in your own words as to why that point is incorrect and refute it. Statements are a particularised version of events in further depth to your intial defence.

[Andyorch]

There is a specific style of statement when responding to this type of application for Summary Judgment /Strike Out. Its not like a normal statement in response to allocation. The above is really unsuitable unfortunately.

Statement in response to this application must be filed and served on the claimant not less than 7 days hearing date.

 

Andy

[Andyorch]

What date is the application hearing ?

[Andyorch]

Okay Ill post you a draft example by later today.

[Andyorch]

The following is in the style for this response to an application SJ>SO use the main body and layout and insert the points you wish to add or remove that yourself and DX feel important but remember the statement main purpose is to pinpoint the errors of the claimants statement not necessarily to support and bolster your defence.

 

Witness Statement

 

1.I, xxxxxxx being the Defendant in this case will state as follows; I make this Witness Statement to oppose the claimant application dated (insert date) to lift the stay and Strike Out Defence/Summary Judgment pursuant to CPR 24.5 (1) a&b in view of my defence submitted to the claim dated 3^rd June 2019. .The claimant confirms that this claim issued through Northampton CCBC on (insert date) and remained stayed since.

I will respond to the same numbered paragraphs as the claimant’s statement as follows:-

2. The claimants witness statement opening paragraph confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act and also be in attendance at hearing to give evidence in support of the claimants witness statement.

Background

3. It is admitted that I have in the past entered into Student Loan Finance agreements with the Student Loans Company (SLC) Mortgage Style. The loans were dated 23^rd April 1998, 20^th April 1999, 3^rd April 2000 and lastly 16^th Nov 2000.

4. The loans were regularly deferred as part of the process. On the 27^th March 2014 the debts were assigned pursuant to sec136 of Law of Property Act 1925.The claimant confirms the last payment/acknowledgement made was October 2008. Please see exhibit A2 claimant’s letter stating last deferment being October 2008.

5. The claimant refused to accept my next deferment/s (insert date)refusing to acknowledge the standard deferment form used by SLC and passed the debt to Capquest a Debt Collector on or around (insert date) and the claimant issued a Default Notice dated 13^th October 2016 and placed default markers on my credit files and latterly issuing a Termination Notice dated 11^th November 2016.

6. (You will have to insert here how you did eventually sign their forms and what dates submitted and deferred dates etc..etc. and how the default markers were removed after contacting them.)

7. On or around January 2018 the claimant informed me the accounts had now been passed to Allied International Credit, a Debt Collector having ignored my previous letters dated xxxx and my attempts at deferment.

Defendants Response to claimants claim/ Application

8. In response to paragraph 13 a claim form was received through Northampton CCBC on 3^rd June 2019.On receipt of this claim I requested information pursuant to CPR 31.14 dated 12th December 2018.  The claimants claim to have received this on the 24^th June 2019 some 6 months later. 9. The claimant fails to refer to a previous request pursuant to section 77 of the CCA1974 and therefore subject to above and being unable to comply with that request still remains in default.

 

10.In response to paragraph 6 the agreement/s referred to at pages 1-10 SR1 as per their own admittance within its statement are illegible due to their age and which reconstituted versions are inappropriate for the age of the agreements are therefore unenforceable pursuant to sec 61/ 65 of the Credit Consumer Act 1974 :-

 

sec61 Signing of agreement.

(1)A regulated agreement is not properly executed unless—

(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

sec65  Consequences of improper execution.

(1)An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

And therefore pursuant to sec 127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

Conclusion

11. In view of the information set out above I respectfully submit to the court that the claimants application be denied. The claim remains stayed until such time the claimant can comply with section 77 of the CCA1974 or in the absence of that compliance strike out the claimant claim and dismiss the claim in its entirety.

 

Statement of truth

 

I, XXXXXXX defendant, believe the facts stated in this witness statement are true. I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Signed: 

Print Name:

Dated: 

 

 

 

.

[Andyorch]

Finalise it and get it away by Monday at the latest, copy to court, copy to claimants sols. The whole point of this exercise is to stop their application and get the claim to remain either stayed or back on track to allocation. 

 

.

[Andyorch]

3 minutes ago, RC710 said:

I will adapt using that template, and some of the pertinent points that DX100uk raised. 

Very good but dont go off tangent adding waffle that will lose the judges attention ,pertinent constrictive points only.

[Andyorch]

Conclusion

14. I believe the claimants claim to be in error because I did not receive an invitation to defer in 2020.

So have they complied with section 77 ? that conclusion is looking very weak ?

[Andyorch]

Absolutely your conclusion should be one the main parts of the statement.

I would add ...

11. In view of the information set out above I respectfully submit to the court that the claimant’s application be denied. The claim remains stayed until such time the claimant can comply with section 77 of the CCA1974 or in the absence of that compliance strike out the claimant claim and dismiss the claim in its entirety.

The claimant has failed to evidence and justify its application to dispose of this claim without a trial where a claim or issue or a defence to a claim or issue has no real prospect of success and there is no other compelling reason for a trial. (CPR 24.2)

[Andyorch]

Not really ...just what I have posted will suffice.

11. In view of the information set out above I respectfully submit to the court that the claimant’s application be denied. The claim remains stayed until such time the claimant can comply with section 77 of the CCA1974 or in the absence of that compliance strike out the claimant claim and dismiss the claim in its entirety.

The claimant has failed to evidence and justify its application to dispose of this claim without a trial where a claim or issue or a defence to a claim or issue has no real prospect of success and there is no other compelling reason for a trial. (CPR 24.2)

 

Quote

And should I leave in the stuff about the changes to ways of deferment?  Can this be used now, or would it come in at the point I need to give a defence?

 

Well you might not get another chance to use it if your statement fails so if you think its important in your objections then use it.

Again the whole point of this statement is to convince the court that the claimants application should be denied and that it has failed to evidence sufficient cause for Summary Judgment. After that whether the claim proceeds to allocation or the claimant withdraws is another day.

[Andyorch]

[Andyorch]

Well done, I dont think you realise how rare it is for a claimant to lose a SJ application and how difficult it is for a LIP to stop it in its tracks.

Usually a failed SJ application does not bode well for a claimant and its even  rarer for the claimant to proceed to trial after losing.

The following is hilarious for a District Judge to state:-

5 hours ago, RC710 said:

He laboured around my claim about the copies of agreements being illegible. He agreed they could not be read in entirety but concluded that dates/signatures/sums were visible. He looked up S.77 and determined that it said nothing about legibility

Thats possibly because section 77 does not refer to Legibility its section 65 as per your WS above. 

If you refer back to my amendment in the conclusion of your statement you will now see why its imperative to conclude and prompt the court to test if the claimant can show and prove it has the means and evidence to pass the threshold to be awarded Summary Judgment.

 

Well done.

[Andyorch]

For reference CPR 24.2 which you refer to in your summary.

Grounds for summary judgment

24.2 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.

(Rule 3.4 makes provision for the court to strike out^(GL) a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)

Which is basically what I added to your conclusion 

 

[Andyorch]

Yes take a break and come back when (if) you receive further directions from the court