RBS Loan and PPI - COURT CLAIM **WON** discontinued

[pt2537]

ooops sorry posted on the wrong thread

 

that'll teach me for having tooooo many windows open

[I've got no money]

If. however, you've made your own application to strike out on an N244 already then your application will go ahead.

 

Can you clarify whether you have?

[sequest]

Thanks for your help IHNM.

In the N244 I requested that I be allowed to amend my defence - that was because of the SJ Hearing and trying to cover all possibilities. In my AQ Draft Directions I asked for the Claimants to supply information and, if they did not comply, then a strike out.

I feel this case has progressed far enough without the agrrement as the law is quite clear.

The problem I have at present is that by rejecting their Draft Directions and suggesting alternatives, I will be agreeing with them. In effect, I would like my Draft Directions to ask for SJ on grounds that they have no chance of winning (turn the tables!) and get the case struck out.

How can I reconcile both - unless I suggest they ask for their case to be struck out.

The Claimants seem to be leading and prolonging matters. I feel a need to attack.

Edited May 11, 2009 by sequest

[I've got no money]

Thanks for your help IHNM.

In the N244 I requested that I be allowed to amend my defence - that was because of the SJ Hearing and trying to cover all possibilities. In my AQ Draft Directions I asked for the Claimants to supply information and, if they did not comply, then a strike out.

I feel this case has progressed far enough without the agrrement as the law is quite clear.

The problem I have at present is that by rejecting their Draft Directions and suggesting alternatives, I will be agreeing to them. In effect, I would like my Draft Directions to ask for SJ on grounds that they have no chance of winning (turn the tables!) and get the case struck out.

How can I reconcile both - unless I suggest they ask for their case to be struck out.

The Claimants seem to be leading and prolonging matters. I feel a need to attack.

 

I don't think that you can ask for a direction to strike out.

 

Perhaps the way to deal with it is this:-

 

Do a letter to the other side - mark it without prejudice - tell them that you note their intention to withdraw the SJ application and that you don't agree with their draft directions and that you intend to pursue an application to strike out the claim, as referred to in your witness statement. If that is unsuccessful you propose the following directions

1. The Claimants' Application for SJ is dismissed

2. The Defendant have permission to file an amended defence and counterclaim by 4pm (put the date 14 days after the date of the SJ hearing)

3. The Claimant shall within 21 days of service of amended defence and counterclaim file and serve a reply and defence to counterclaim

4. Both Parties shall complete and file AQ's within 14 days from service of reply and defence to counterclaim

5. The Claimant to pay the Defendants costs of and consequential to the application for summary judgment in the sum of £XXX

[steven4064]

IN your AQ you can gie more than one set of directions. What I did in my NatWest claim. Something like

1A) Section H – Other Information

 

The Claimant respectfully requests that an order may be made as follows;

 

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

 

List here the reasons why their case should be struck out

 

2. In the alternative, should the court not be minded to strike out the defence, and if the claim is to proceed to allocation, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2A).

 

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence, that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as small claims track cases in Leicester, Derby, Chesterfield, and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, I believe that the outstanding issues are are of fact. Accordingly, I respectfully request that this claim is allocated to the small claims track, and would estimate that the hearing of the claim should last no longer than one hour.

Attachment 2A is your drat directions. On some AQ,s 'Other information' is section G - change to suit.

[steven4064]

My post crossed with IGNM's - The blurb in teh request for draft directions in my post above is for a regular bank charge claim - it would have to be changed for your circumstances. IGNM has given some words.

 

He is right that you don't ask for a direction to strike out but you can ask for a strike out directly IMHO.

[I've got no money]

My post crossed with IGNM's - The blurb in teh request for draft directions in my post above is for a regular bank charge claim - it would have to be changed for your circumstances. IGNM has given some words.

 

He is right that you don't ask for a direction to strike out but you can ask for a strike out directly IMHO.

 

In terms of the AQ you're right but this isn't about directions on the AQ - here that we have a hearing coming up this week and the issue is whether we can raise the strike out at the hearing on Weds.

 

The hearing is the Claimants application to strike out and we are involved in discussions with the other side as to directions - as they have indicated that they are intending to withdraw their SJ - its' a different situation to an AQ

[sequest]

Thanks steven4064 and IHNM.

 

IHNM - I like the last letter you suggested because it gives me the opportunity to pursue the strike out and then accommodate the Claimants Draft Directions if it fails.

steven4064 - that will be very useful if we get back to the AQ again.

[steven4064]

In terms of the AQ you're right but this isn't about directions on the AQ - here that we have a hearing coming up this week and the issue is whether we can raise the strike out at the hearing on Weds.

 

The hearing is the Claimants application to strike out and we are involved in discussions with the other side as to directions - as they have indicated that they are intending to withdraw their SJ - its' a different situation to an AQ

Note to self - must start reading the whole thread before posting

[sequest]

Dear Sir/Madam,

 

 

Claim No. xxx

 

 

I write in regard to your letter dated x May 2009.

 

As Solicitors, you must be fully aware that, without the agreement, this case should not have been brought before the Court.

 

Consequently, I cannot agree with your proposed Draft Directions and will be pursuing a strike out of your claim as requested in my Witness Statement.

 

If that should be unsuccessful, I propose the following Draft Directions:

 

1.The Claimants’ Application for Summary Judgement be dismissed.

2.The Defendant have persmission to file an amended Defence and Counterclaim by 4pm on 28th May 2009.

3.The Claimant shall within 14 days of service of amended Defence and Counterclaim, file and serve a reply and defence to defence and counterclaim.

4.Both Parties shall complete and file AQ's within 14 days from service of reply and defence to counterclaim.

5.The Claimant to pay the Defendants costs of and consequential to the application for summary judgment in the sum of £370.00

 

Yours faithfully,

[I've got no money]

Dear Sir/Madam,

 

 

Claim No. xxx

 

 

I write in regard to your letter dated x May 2009.

 

As Solicitors, you must be fully aware that, without the agreement, this case should not have been brought before the Court.

 

Consequently, I cannot agree with your proposed Draft Directions and will be pursuing a strike out of your claim as requested in my Witness Statement.

 

If that should be unsuccessful, I propose the following Draft Directions:

 

1.The Claimants’ Application for Summary Judgement be dismissed.

2.The Defendant have persmission to file an amended Defence and Counterclaim by 4pm on 28th May 2009.

3.The Claimant shall within 14 days of service of amended Defence and Counterclaim, file and serve a reply and defence to defence and counterclaim.

4.Both Parties shall complete and file AQ's within 14 days from service of reply and defence to counterclaim.

5.The Claimant to pay the Defendants costs of and consequential to the application for summary judgment in the sum of £370.00

 

Yours faithfully,

 

I would put something in to say that you don't think a CMC is appropriate as it will merely seek to increase costs and be disproportionate to the claim and in any event in your view that directions can be dealt with by the AQ

[sequest]

Ok - thanks. Will add to letter.

[sequest]

Just to update:

 

I went to Court this week for the Draft Directions Hearing which took the place of the Summary Judgement Hearing. The Judge was very nice. He didn't award costs to either side.

 

He gave me permission to amend my Defence and for the Claimants to reply with their amended Defence. He virtually ignored their request for Case Management and said it would be best to get the Defences in before taking any further action. I asked for a strike out on the grounds that the Claimants had not supplied the agreement but, as I had not submitted an Application for a strike out, he said that he couldn't consider it at present. (was worth trying!).

 

I am beginning to think that I should have applied for a strike out as soon as the Claimants failed to supply the agreement. This might have stopped them issuing the Summary Judgement Application.

 

Thanks CCM and IHNM for all your help.

[I've got no money]

Just to update:

 

I went to Court this week for the Draft Directions Hearing which took the place of the Summary Judgement Hearing. The Judge was very nice. He didn't award costs to either side.

 

He gave me permission to amend my Defence and for the Claimants to reply with their amended Defence. He virtually ignored their request for Case Management and said it would be best to get the Defences in before taking any further action. I asked for a strike out on the grounds that the Claimants had not supplied the agreement but, as I had not submitted an Application for a strike out, he said that he couldn't consider it at present. (was worth trying!).

 

I am beginning to think that I should have applied for a strike out as soon as the Claimants failed to supply the agreement. This might have stopped them issuing the Summary Judgement Application.

 

Thanks CCM and IHNM for all your help.

 

Excellent - when you get their amended defence let us know what it says - perhaps at that stage it might be worth thinking about an application to strike them out

[sequest]

Thanks - I will keep you posted.

[citizenB]

Yes, good news, Sequest:)

[sequest]

Thanks for your help citizenB.

[sequest]

Can anyone please give me a definitive answer on this question:-

 

If mis-sold PPI in first loan ( single premium PPI also added to total credit and interest charged) is not refunded when second re-financing loan taken out, does this make second loan also unenforceable on the grounds that the amount of credit would be mis-stated.

[citizenB]

Ummmm, dont know the answer to that one. I will flag it for someone who does.

[sequest]

Thanks CitizenB

[steven4064]

It's a bit hard to unpick but I don't think it makes the second loan unenforceable - you did borrow that amount of money. If the PPI was mis-sold, what you should do is reclaim it and then of course you would have that money from the laon to do with as you wish.

 

Alternativel, you could possibly agree to have it offset against the new loan to reduce repayments or term.

[sequest]

Thanks steven 4064.

 

However, if the amount of credit was mis-stated in the first loan, then surely the credit would still be mis-stated when the first loan was re-financed.

[steven4064]

I don't think the amount of credit was mis-stated if the PPI was mis-sold - you merely took out a loan for something that you didn't need, didn't want and is no use to you. Now you want the repayments back.

[sequest]

I didn't know anything about the PPI , so I didn't take a loan for PPI. However, a single premium PPI was added to the total credit, whereas it is really a charge for credit. That would make the total credit wrong. Consequently, when the loan was re-financed, instead of the credit being £5k, it was £7k.

 

Just thinking aloud.

[steven4064]

Can you post a copy of the agreement (personal details removed)