Court Date - Have queries! Help Please?

[olliebollie]

Hi Fzrkitten,
Just nipped on here quickly (got to do my sons New School admissions form!) so having a little catch up.
God what another hassle for you but stick with it (easy to say I know) but its only a few days to wait and fingers crossed the Judge will be on your side that day. Sorry I haven't got more experience to advise you have you PM'd any of the moderators etc for help/advise?
Hey hopefully the court ran out of fax paper just as they sent the request for the stay through....we can live in hope!
Keep us posted and hope you made lots of dosh at the boot sale.

Ollie xxx

[TBeckett100]

by the way how does one address the judge?

[fzrkitten]

Hiya, thanks olliebollie, Hope you had a good holiday? I have PM'd Gary but not sure he's around, and don't want to be an effort to people, especially as their lives are busy too and don't revolve around us all the time! Will pm you soon for a catch up. x

tbeckett100 - not sure about addressing the judge - your honour? too old fashioned? if it's a lady? You've got me worried now!

Bw, Fzrkitten.

[Rich3236]

Tbeckett100,

I believe you refer to the judge as Sir or Ma'am, if you use this you can't go wrong.

Rich

[olliebollie]

Hi fzrkitten.

Not away until this thursday 6th. Rushing around like a headless chicken at the mo trying to get everything sorted before I go! So will be about another couple of days yet so let me know how you are.
And you are not bothering anyone asking for help....you have helped plenty of people on here so don't be daft!!!

Ollie xx

[fzrkitten]

Hi olliebollie, sorry, head not with it, forgot you going on 6th.

Are there any mods/site helpers out there that can help me with my previous post as my court case is friday coming, and I need to object exceptionally quickly to the application for a stay by lloyds.

My case is slightly different as in july lloyds defaulted to the judge's order of disclosure, but I was away and they put in an 'ex parte application' for re-allocation to fast track' which they got.

They have now put in for a stay, but still state 'on the small claims' court case next friday.

I actually filed for court in April, and they have stopped me all the way. It's a large sum of money involved, and I'm scared. Gary doesn't seem to be around? (Have pm'd you Gary).

I really need to walk something into the court tomorrow, objecting on the grounds of them defaulting, not disclosing, getting the order changed to fast track, asking for a stay on the small claims track (!), and financial ruin if the case doesn't go ahead next friday. phew.

They have also stated that if they don't get a stay, they will send counsel. This worries me!

I know the site is v quiet cos of the stays - but please tell me someone is out there?


BW, Fzrkitten.

[christinajanep]

hi ya, book worm is currently online maybe worth sending them a pm so they can have alook at it for u x

[GaryH]

Originally Posted by fzrkitten

Unbelievable.

Just got home to a letter from SC&M that they have faxed to the court, asking for a stay, on next weeks 'small claims hearing'. Would that be the same one they already had re-allocated to fast track themselves I wonder?!

Need serious help now if anyone is out there, Lloyds faxed letter to the court yesterday, I got copy today. I think it's pretty standard, but as the court case is next week they have asked the court to fax them or phone them letting them know if they have got the stay, and saying that if they don't, their client will be represented by counsel.

I need to oppose this stay, and very quickly, (like now!) on the grounds that they defaulted a day before the 26th July anyway, but still managed to get the case re-allocated, now they've asked for a stay on a small claims case, when it's fast track now, and they've not corresponded once before this either. Also financial hardship is a huge factor for me, seriously.

Also, can they get a 'case management hearing' stayed? Because that's what they got it changed to by getting it re-allocated to fast track. And I've objected to the fast track re-allocation with help from Gary, which is also supposed to be heard next week.

All getting a bit confusing and very scary.

I'm actually worried about representing myself in court now as well if they don't get stay and bring counsel!

Oh well, at least it gives the rest of you guys something to read instead of all the stays for a bit!

Fzrkitten. x

Sorry - I've had a nightmare week. Didn't forget you though!

Its very unlikely that they will get a stay before the hearing, in fact the letter probably won't even go before the judge before the 7th. Expect them to turn up and argue for one there. Having said that, just in case you can send a fairly short letter to the court stating that you object to the defendants proposal of a stay and therefore they should be made to apply properly or otherwise the issue should be dealt with at the hearing, so as the issue and your objections can be heard properly.

At the hearing the issues as I see it will be these;

Your application

The first thing is to object to the reallocation of the claim and also their breaching of the order. Everything you need is pretty much in the statement which I prepared for you before. Make sure you understand the main points contained in it and also where possible you should try to expand on some of the points yourself and make some notes. Ask for the defence to be struck out for non-compliance with a court order and/or abuse of process. There are some materials you can take in support of this - the list of settled claims from the litigation section, plus abuse of process orders and Mullen v Hackney. PM me your e-mail address and I'll send you the last 2.

Stay

Take a stay removal/objections template and object on the usual grounds.

http://www.consumeractiongroup.co.uk...-guidance.html

Also add your own stuff regarding your particular situation, for instance if you believe that yours would qualify as a 'hardship case' you should argue that and take as much evidence as possible to back it up.

Another important point is that the test case will, in the first instance at least, only test the application of the UTCCR and not the penalty at common law principles. Therefore IMHO you can make the distinction between the charges levied for overdraft excess and the charges levied for unpaid items. Charges for overdraft excess (and bounced cheques) arise from clear breaches of contract, so are subject to the common law on penalties (I.e the charge must be proportionate to costs) - whereas its more difficult to establish a breach for unpaid DD/SO so they rely on the UTCCR.

The OD excess and unpaid cheque charges therefore concern a simple issue of fact - whether the charge is proportionate to the cost - so you could argue that a stay is unnecesary. If it looks like they are going to get a stay I would suggest that you propose that the part of the claim relating to charges with clear breaches (OD excess/cheque bounce) is allowed to proceed, and only the UTCCR relient part (DD/SO charges) is stayed.

Establish charges arise from breach of contract

You need to take the T&C's with you so as you can demonstrate that the OD excess and cheque bounce charges arise from breaches of contract. This is important for both of the points above. Take a schedule of the relevant terms with an explaination of how the terms provide for a breach, such as this one (the terms will be the same) -

General Form of judgement or Order!

Also take the actual T&C documents. PM me your e-mail address and I'll send the relevant ones to you.

If the claim is stayed

If the judge stays the claim anyway then ask for conditional orders as per the stay template, such as;

1) The defendant is not permitted to levy further charges until the stay is lifted,

2) The defendant is not permitted to take any default, enforcement or collection action on the account until the stay is lifted.

If the claim proceeds

If the judge allows the claim to proceed, or part of it, then the issue will be directions.

Hopefully your application will be successful and the claim will proceed on the small claims track. Even if not, either way you should really push for the defendant to be ordered to comply with the original order.

It all seems daunting but as long as you follow and prepare for the above then I think you'll have covered all bases and will be prepared for every eventuality. Remember that its not a final hearing, nothing can be won or lost so there isn't any real pressure. Just be prepared and do your best, and you'll be fine. 99% of people who have to go are nervous to start with but once its over wonder what all the fuss was about. Its very informal and your certainly not expected to be a lawyer or to know as much as one.

Any questions give me a shout.

[christinajanep]

if u need me i'm about friday and the offer of coming with u still stands x

[fzrkitten]

Hi Gary,

I pm'd zoot earlier, but you got back to me, I tried to copy you in on it but your pm box was full. Thank you so much for all this info, I will eat sleep and dream it this week before friday. I have read so much on site but I tend to take too much in and then not realise the important bits, so you have condensed it for me exceptionally. I will go and read your wise words and pm you my email, thank you.

Christina, I might just take you up on your offer, will pm you tomorrow to discuss.

Gary I'm sorry I did say I was a panic merchant!

Thank you thank you thank you!!!

Fzrkitten.

[fzrkitten]

Gary, your pm box is full, probably me already! LOL.

[GaryH]

Sorry - try again now.

[fzrkitten]

Hi Gary,

couple of q's:

Can I read from notes in court?

How many copies of the stuff you sent me should I take, along with my other documents etc? And do I need to copy my bundle again for any reason (I have my copy and they were sent theirs).

With the stay/removal objections template - is that just for me to read from as opposed to writing an objection letter to take with me? I did fax a short letter to the court yesterday as you advised, and posted it.

I had a zero overdraft limit - they never gave me one, in 6 years of asking, so how do I use that? Obviously I went over my account limit, is it still the same?

iii) Term 9 a) of the 2000 Terms and Conditions state:

“You are not entitled to overdraw the account if no overdraft facility has been arranged, or to overdraw the account beyond the limit of an arranged overdraft facility. You are not entitled to use your card if this would happen, but this does not affect our right to deduct the amount of the card transaction or guaranteed cheque from the account if the card is used.”


And you said my case hopefully will continue on the small claims track - if that's the case, surely this is the final hearing?

Originally it was the final hearing for small claims, lloyds defaulted in july before date of test case info came out, but they put in that ex-parte order getting it re-allocated. Saying that, they don't seem to know they got it re-allocated as they asked for the stay on the hearing of 7th Sept on the small claims track!
The judge did change it to a 'case management hearing', and re-allocated to fast track.

So I'm not really sure what will happen if I even get that far - depending on if it gets stayed by friday.

Thanks v much for your help again.

BW, Fzrkitten.

[fzrkitten]

Hi, just to say I'm offline tonight shortly, tiscali modem's thrown a wobbly at home, no lights now. good timing but never mind!

Might phone court tomorrow and see if I'm still on for friday, although I don't really want to know!

Fzrkitten.

[GaryH]

Originally Posted by fzrkitten

Hi Gary,

couple of q's:

Can I read from notes in court?

Yes, although try not to read completely from a 'script', if you know what I mean. You can also give the judge any written statements and give evidence that way.

How many copies of the stuff you sent me should I take, along with my other documents etc? And do I need to copy my bundle again for any reason (I have my copy and they were sent theirs).

2. One for you to refer to and one to pass to the judge and/or other side. No need to print another bundle, just take the original with you.

With the stay/removal objections template - is that just for me to read from as opposed to writing an objection letter to take with me? I did fax a short letter to the court yesterday as you advised, and posted it.

Fine. Just take it with you in the layout its in. As above, you can give a copy to the judge.

I had a zero overdraft limit - they never gave me one, in 6 years of asking, so how do I use that? Obviously I went over my account limit, is it still the same?

iii) Term 9 a) of the 2000 Terms and Conditions state:

“You are not entitled to overdraw the account if no overdraft facility has been arranged, or to overdraw the account beyond the limit of an arranged overdraft facility. You are not entitled to use your card if this would happen, but this does not affect our right to deduct the amount of the card transaction or guaranteed cheque from the account if the card is used.”

Exactly the same. Which type of account is it, btw?

And you said my case hopefully will continue on the small claims track - if that's the case, surely this is the final hearing?

Highly unlikely. Not inconceivable though I suppose.

[fzrkitten]

Hi Gary,

Thanks for that. My account was a classic account I think, basic one they do, no overdraft, only an electron card etc.

I'm going to phone the court before lunch, not looking forward to the answer either way now, if it's on or off!

If it's on, Lloyds letter says they are going to send counsel. This worries me as I read someone else's thread yesterday that Lloyds sent a barrister all the way from Bristol just for their case!

I'll wait til I've spoken to the court before I panic eh.

I will copy all my paperwork today, and I've got tomorrow off to just go over it again and again before friday. Trouble is I think I will clam up!

BW, Fzrkitten.