SB100 v HFC - is this default compliant? Court/Restons ***WON***

[car2403]

What basis are you looking to strike out on?

[car2403]

You'll need to amend as necessary, then;

 

Form N244

 

Yes, N244;

 

Part A - 3;

 

The Claimants claim is insufficiently stated under CPR Part 16.2(1)(a) and CPR Part 16.4(1)(a). The Defendant applies to the Court to strike out the Claim, awarding Summary Judgment to the Defendant (CPR Part 24.2(a)(i)), as CPR Part 24.2(b) applies to these proceedings.

 

Relevant links to the CPR Part I'm referring to are;

 

PART 16 - STATEMENTS OF CASE

PART 24 - SUMMARY JUDGMENT

Part C;

 

The Defendant argues that the Claimants Particulars of Claim is insufficiently stated, as it does not refer to the terms under which the claim is brought concisely and causes issues for the Defendant in he is unsure as to what the case to answer is - therefore the Defendant is unable to Defend the claim properly.

 

Despite these concerns, and the Defendant having previously corresponded up on with the Claimant and their representatives, the Claimant has failed to clarify this issue and has also failed to provide such information under a CPR Part 18 request for more information from the Defendant, dated ****, giving 14 days in which to comply with that request.

 

The Defendant argues that the Claimants claim is insufficiently stated under CPR Part 16.2(1)(a) and CPR Part 16.4(1)(a) and respectfully asks the Court to take action under its powers in relation to this Part to strike out the Claimants Claim due to this failure. The Defendant respectfully applies to the Court to award Summary Judgment to the Defendant, under CPR 24.2(a)(i), in the current proceedings, in that the Claimant has no real prospect of succeeding on the claim, due to these insufficiently stated particulars of claim.

 

Further, the Defendant also argues that CPR Part 24.2(b) applies to the current proceedings, for the reasons already outlined, and that there is no compelling reason as to why the case should be disposed of at trial. The Claimant is unable to show that it can successfully succeed with this claim, as it has failed to comply with the pre-action protocols outlined in s.87/s.88 Consumer Credit Act 1974. Unless the Claimant is able to demonstrate that a fully enforceable credit agreement is in existance, pursuant to s.60/s.61 and s.65, the Court is unable to enforce the agreement against the Defendant as outlined in s.127(1) and s.127(3). For all these reasons, the Claimants claim must fail, in either case.

 

In the alternative, where this honourable Court decides not to strike out the Claimants Claim, the Defendant seeks an order from the Court that the proceedings be generally stayed for a period of 28 days to allow the Claimant to further particularise its Claim and clarify the terms under which it claims against the Defendant in such detail as required by CPR Part 16, and that the relevant documents previously requested by the Defendant are disclosed prior to the Defendant being expected to submit a Defence, and ordering that the Claim be struck out without further notice if the Claimant does not take such action.

 

TAKE NOTICE THAT IF THE RESPONDENT TO THIS APPLICATION FOR SUMMARY JUDGMENT WISHES TO RELY ON WRITTEN EVIDENCE AT THE HEARING, IT MUST FILE A WITNESS STATEMENT AND SERVE COPIES ON THE CLAIMANT AT LEAST SEVEN DAYS BEFORE THE DATE SET FOR THE SUMMARY JUDGMENT HEARING

[car2403]

I have - that's s.87/s.88.

 

You wouldn't say it's defective, as it's for them to prove it isn't defective, not for you to prove that it is - you can't prove a negative, but you can enter a response to their reply to your Application, should they be silly enough to raise that as an issue.

[car2403]

3 copies - 1 for the Court, 1 will be returned to you and 1 for the other side.

 

Cheque made payable to "HMCS"

[car2403]

Is the Court the claim is at the Court you've sent the Application to?

 

Ring the Court, (where the AQ is to go back to) and check they've received the Application. They should set a hearing date, which will over ride the AQ submissions, but you may want to complete it anyway - one of the questions asked relates to Applications already submitted or that will be submitted in the future, so you can state that you've already submitted a SJ application.

[car2403]

It could be, but that's unlikely.

[car2403]

Its been listed for hearing in October. I'm guessing I should do the AQ though just to be 'belt and braces' certain? Need to find the link to filling them in now

 

What's been listed? SJ/SO application or final determination hearing?

 

Nothing wrong with submitting the AQ - helpful links already provided

[car2403]

This is easy. Check out SS's links, above

[car2403]

This is what I'm using, unless I need to use the same as i used for the SO/SJ application. It has to be in tomorrow, so if someone could give me a quick yes / no I'd be very grateful. Thanks.

 

Yup

[car2403]

Just justify why you've asked for the Draft Order of Directions.

[car2403]

In SS's links?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

[car2403]

Ok, its done and gone. My concern was that they consider what they've sent me complies- but I don't, so to ask for it again might seem, to some, as being deliberately awkward.

 

Cheers

 

I can't see how - you're asking them to disclose the documents required to prove their claim against you? How is that being awkward, exactly? They've been awkward in not giving you want you want - you're only taking the game to the next level.

[car2403]

Yes, but we're asking the Court to order them to disclose documentation that means they can bring the claim - if they can't, that's where your SJ application comes in. This is just covering all bases

[car2403]

I recall they need to file their response to my application seven days before the SO/SJ hearing- is this correct?

 

Thanks

 

If that is what you put in your Application, which the Court seals and lists for hearing, then yup, that's right.

[car2403]

Thought so

[car2403]

You should get a sealed copy of their Application by the Court - I think they've sent it to you, so you have notice, in which case they can ask the Court to waive the need for disclosure of it again and ask them to deal with it all in the one hearing, instead of adjourning.

 

What's their basis for asking for SJ?

[car2403]

Yes, but what's in the rest of the form? There must be some supporting evidence to accompany those statements.

[car2403]

When, when, when will they stop blaming the Production Centre for filling inappropriate claims? I can show you threads going back years - some of which are mine! - where they've been told it's not acceptable to file a claim without the documentation

 

They seem to have ignored all the issues surrounding enforceability and the unlawful Default/Termination of the account, which is nice for them, isn't it.

 

Lets hope you get a stringent DJ who will give them what for.

 

Which Court is this and will you be booking a mini bus for the CAGgers that are interested in coming? I hear we get discounted rates if we call it an official CAG meet! ;);)

[car2403]

Hey! If you have some of those commisseratry (spealling? ) drinks beforehand you should be ok.

 

Well, you never know, if you offer the "Solicitor" that turns up to represent Restons (I'm assuming Jeremy won't be available ) more money than they are paying and he might put your side forward at the same time? Can you imagine!

 

Seriously, though, in my experience, paying a Solicitor for this hearing will be a waste of time - you know more about this case than anyone, so you will present it better than anyone recommended. Just get those nerves under control

[car2403]

The Judge will invite them to start, as they are legally trained and (apparently) know what they are talking about.

 

They will have to present your case, being serious for a second, to the best of their abilities. Solicitors are officers of the Court, not just your opponent, remember.

 

I suspect the Judge might give you a hand, so listen carefully to what he/she says. I've known Judges ask closed questions to give Litigants in Person a nudge in the right direction.

[car2403]

No, no, no - this is a good thing! Honest!

 

I'm not saying more now, but lets see what their next move is over the coming weeks.

 

PM'd you SB...

[car2403]

Only you can answer that question, SB.

 

Reston's wouldn't be offering a reduced settlement if they seriously thought they would win, but then you may decide to accept a (realistic ) offer in installments if it means that you can put an end to this tirade quickly.

 

I suspect such an offer will not be "realistic" in your terms, though, so I can't see how you can accept anything less than what you see as realistic.

 

You also need to consider that replying to this may give them the push needed to continue, as you wouldn't settle if you really thought you had a decent defence and could argue and win in Court?

 

Your call, fella...

[car2403]

 

They'll be gutted.

 

It isn't marked as a CPR Part 36 offer, is it?

 

Is it without prejudice, save as to costs, by any chance?

[car2403]

Nope, but I knew it would have it on, none the less

 

Scare tactics?

[car2403]

Simply rebutting your defence isn't sufficient - they haven't stated on what grounds each reason of your defence should fail.

 

This amounts to a he-said, so we-said, situation, which the Court just can't accept.

 

They are hoping to win the "Judge Lottery" with that conclusion, effectively saying the Court should ignore all the rules of the Court, the legislation and the rules of evidence "because you've borrowed the money".

 

Personally, I would be putting a response to their SA forward, (which isn't required, but would be fun to construct) pointing all this out - then let the Court decide.

 

A word of warning, though, as usual. The Court may well decide this in their favour - highly improbable, but not impossible. You may want to consider if you want to push on, but I would if it were me...

 

Is this a new claim? If so, and they haven't sought permission to bring it, (regardless of whether they think they can win or not) then you should seek a SO on that basis.