HFC/Restons **WON**CASE STRUCK OUT

[Bug]

Umm, their figures are way out too

[car2403]

Originally Posted by Bug

Ooo I've just seen a mistake!! Part C, number 3 says I made the disclosure request by email .... NOT TRUE and I can PROVE it - that means that they issued a claim to my address without satisfying themselves as to my identity ... am I wrong in thinking that's naughty?

Yes - how can they be so confident of your identity that they can issue a Court claim but not reply to your request for information? Sounds like another abuse of process? Not really "naughty", though - but I bet the Judge will chuckle at that one!

I'm interested to see how they argue over the agreement, which is exactly the same as in my claim, as I'm arguing mine is missing the notice of protection and remedies under the CCA - your agreement has this on the T&C's overleaf. Just as well that they haven't provided those to me in my claim - shame they are now bound by what they've already supplied under s.172 CCA, otherwise they could have produced this at trial!

You still have the missing cancellation rights; (the creditor having to prove the agreement wasn't cancellable)

The agreement provided has been improperly executed under s.64(5), in
that the agreement does not contain statements of the debtors right of
cancellation (as required by s.64(1) CCA 1974 and Reg.2(3) of the
Consumer Credit (Agreements) Regulations 1983 (SI1983/1553)) and that
antecedent negotiations took place with the creditor prior to the
agreement being sent for signing, that signing taking place away from the
creditors’ premises making the agreement cancellable as per s.67 CCA
1974 and the regulations there under.

Any application for an Enforcement Order under s.65(1) CCA 1974, as a result of the improper execution, under s.64(1) CCA 1974, (outlined above) must be dismissed by the Court pursuant to s.127(4)(b) CCA 1974

Have you had copy statements from these accounts? You'll need these to show collection charges (of which that £700-odd one from Restons is the same) applied to the account and put them to proof of their damage, reasonable amounts, non-excessive penalties, etc, etc. You can see my skeleton argument for more on that, here; http://www.consumeractiongroup.co.uk...ml#post1305973. This is important, as you need to show the Default Notice is inaccurate just in case the Judge allows them to seek enforcement despite the above. If you haven't, just ring HFC and ask for them now - asking Restons may delay the process, which you can include in your defence/counterclaim, ("I believe... etc, etc... and can reclaim an amount less than £5,000 as a result") but it's more powerful to have this detail to hand now, IMHO.

At least they've had a good go at recreating your Default Notice - mine is wrong in many ways! (Which you'll see from my skeleton)

As for the application for summary judgment, this is standard process from Restons from what I've seen. Incidentally, I got in there before them on my claim, as I knew they would do this with mine, (it's cheaper to seek summary judgment, apparently!) so I've asked the Court to strike out/stay the claim until they've sufficiently particularised properly.

They are claiming that they've given you enough info to defend the claim - but haven't even stated which terms you are in "default" over. Same with mine, which is why I've applied for summary judgment against them. Now, I'm not implying that you should apply for summary judgement against them, but I would if I were in your situation - at the moment, the Court can consider their application. If they aren't successful, the claim will go to trial. An appropriate response, IMHO, is to apply for summary judgement yourself to allow the Court to consider both sides and make a judgement on that - that could be to dismiss both applications (which is most likely) but at least the option to award you SJ is there if the Judge sees it your way. (This could be a waste of £40 though, so your call)

See Gary's comments over SJ, here, however;

Originally Posted by GaryH

Following on from here...

Help with Court CCJ letter 1st credit *** SETTLED OUT OF COURT ***

I haven't read the whole thread but from what I've seen, personally (and it's just my opinion), I'm not sure either your case or their's is suitable for summary disposal.

Summary judgment is usually only applied for when a case is clearly hopeless - for instance, when a party has misunderstood a point of law, or when there is irrefutable evidence. An SJ hearing isn't intended to be a 'mini-trial' where the issues are fully explored. As you probably know the CPR says that summary judgment can be granted when a case has no real prospect of success (or no other compelling reason...etc). To be summirarily disposed of it must be shown that the other parties chance of success is fanciful - merely improbible or unlikely is not enough.

The overriding objectives play a very big part in the test but they're a double edged sward - on one hand the interests of justice should mean that any at least arguable case is allowed to proceed to full trial, but on the other hand dealing with cases justly means saving expense, alloting an appropriate share of resourses to cases and dealing with cases expeditously - so court won't allow a case to proceed to trial if it appears the prospect of success is so remote it is deemed fanciful.

I can't offer any comment on the merits of your case because as I said I haven't read the thread, but in general terms the best way to defend an SJ application is (within the bounds of whats valid) to make the issues appear as complex as possible. As long as you haven't misunderstood the legal principles (which, be prepared, the other side will certainly argue - whether you have or not), then I think you should easily be able to resist their application. On the face of it the very fact that both of you have applied for SJ should mean that neither of you will get it.

The leading authority defining the grounds and tests for summary judgment is Three Rivers DC v Gvnr Bank of England. You'll probably find it very useful -

Three Rivers DC v Bank of England (YAWS version 45.1 (27 November 2007))

and;

Originally Posted by GaryH

Yep - get rid of all the backgroud stuff. If you want to get SJ against them then keep it to the precise reason, in law, why you think their case is hopeless. I.e, set out what the law demands, then demonstatrate exactly why and how they have not, and cannot, comply with it.

You can mention it but don't attack them too much over insufficiant particularisation or make it your main argument - that alone isn't grouds for SJ. It's about the lack of prospects of the case as a whole, as opposed to the details or inadequacy's of the pleadings. (which is the main disctinction between the grounds for striking out and the grounds for SJ - strike out relates mainly to a statement of case)

Best of luck. However you decide to go about it, just be confident in your arguments and put them accross as well as you can.

In either case, you do need to respond to the application for SJ in writing (CPR r25.4(1)) at least 7 days before the hearing - as it's set for 17 April (from a previous post) that gives you until 10 April to file this.

My response to their app for SJ and supporting statements for my app for SJ might be some help; http://www.consumeractiongroup.co.uk...ml#post1361381 (you'll see the applications are almost identical!) You might want to wait to see what happens with my application hearing, which will give you a better idea of how yours will go, before doing anything more though? (Mines set for 26 Feb, so I need to file by 12 Feb (as I'm relying on my own statement in support of my own application for SJ))

[car2403]

Originally Posted by Bug

Umm, their figures are way out too

Which figures?

[Bug]

]

Have you had copy statements from these accounts

I've had absolutely nothing in the way of statements so I've no idea how they've arrived at the figures...following on from that...

Which figures?

The first claim, of course they've given me a copy CCA...I had been paying through PayPlan for 7 months before they 're-did' the loan and the figure on the CCA (£6673.80) less the amount I paid through PayPlan (up to Dec 07) is £4252.66 not the £4638.66 they've put on the claim.

[Bug]

I have no figures at all with respect to the second claim apart from the claim itself (and the payment schedule from PayPlan)

[Bug]

Thanks, Chris for your reply BTW - I'll take my time reading carefully through it!

[car2403]

If you can dispute the amount of the claim, that's reason to stop their claim in it's tracks as they haven't complied with your CCA request fully;

78

.—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—

(a) the state of the account, and
(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and
(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor

(6) If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.

This could form part of your SJ application, as they aren't entitled to enforce until they've provided this?!

[Bug]

Okay, thanks Chris ... I'll need some time to chew on all this information....

Cheers

[robcag]

Hi Bug

Originally Posted by Bug

Ooo I've just seen a mistake!! Part C, number 3 says I made the disclosure request by email .... NOT TRUE and I can PROVE it - that means that they issued a claim to my address without satisfying themselves as to my identity ... am I wrong in thinking that's naughty?

I think I've just noticed another mistake in Part C although whether it can be brought to any use or not will need the opinion of Paul or Chris:

In the first paragraph of Part C Restons have stated;
"The sum claimed is the balance due and owing to the defendant under a Personal Loan Agreement...."

Maybe that could be a technicality which would stuff Restons?

Rob

[car2403]

Originally Posted by robcag

Hi Bug



I think I've just noticed another mistake in Part C although whether it can be brought to any use or not will need the opinion of Paul or Chris:

In the first paragraph of Part C Restons have stated;
"The sum claimed is the balance due and owing to the defendant under a Personal Loan Agreement...."

Maybe that could be a technicality which would stuff Restons?

Rob

I queried exactly this in my claim Rob - what I got back was gobbledygook;

...
The outstanding default balance is clearly stated in the Claim, ie. £4992.49 less payments of £771.00 equates to £4221.49.

As far as interest is concerned (to the end of the loan term) we will rely upon the case of Forward Trust v Whymark which has been extensively reported...

Now, this Whymark case allows a creditor to claim all interest up to the end of the agreement on being awarded Judgment, rather than allowing interest to continue to accrue.

This makes sense to me - especially as HFC's agreements don't allow them to continue applying contractural interest post Judgment, from what I've seen - but it STILL relies on them having a fully enforceable (Court order or otherwise) agreement.

The sticking point in Bug's case is the missing notice of cancellation, which makes this agreement irrevocably unenforceable under the CCA - call me psychic, but I have a feeling that Restons will pull the "the defendant is using this in his defence statement to frustrate proceedings and prevent out client gaining Judgment" argument, as they have already done so elsewhere here! It's a shame they are wrong about trying to frustrate proceedings, while admitting he can "prevent ... Judgment" using this, but STILL can't see why they shouldn't be taking him to Court!

[Bug]

Maybe that could be a technicality which would stuff Restons?

I'd like nothing more than that Rob but realistically I have to agree with Chris - they're not going to let that happen.

As for frustrating proceedings,yes absolutely they're missing the point .... the claim/s shouldn't have been issued in the first place against either of us but the fact that they have been leaves us little alternative but to defend and in so doing 'prevent judgment'.

You may be psychic of course, Chris, but I think it's more likely that you have now become familiar with Restons' very limited repertoire.

It's probable that I'll follow you down the summary judgment route but I will be interested to know the outcome of yours on 26th Feb - all things being equal, they're still wrong and I'll do anything to make sure I get my point across.

[robcag]

Hi Chris

Originally Posted by car2403

I queried exactly this in my claim Rob - what I got back was gobbledygook;

Just to clarify, the way the sentence is worded (the bit I put in bold), seems to me that Restons are saying that HFC owe to Bug (defendant) the money that is being claimed. ie They have got their statement/facts/accusations or whatever a55 about face haven't they?

Surely that at least invalidates their application for summary judgement?

Just curious and trying to be helpful

Rob

[Bug]

Just curious and trying to be helpful

...and it's much appreciated Rob. I think Chris' point was though that they're bound to wriggle out of it - just putting it down to a typo ... or even miss the point altogether as they did in Chris' case.