Hfc/Restons default judgement/co - struck out - now new claim!!

[citizenB]

Clynite, I am sure you wont go wrong with FG's excellent suggestions.

 

[Clynite]

Hello CB, you are so correct about FG's advice. I managed to get all the recommended paperwork together and submitted to the CC, on time. I have today, received my stamped copy of my stike out application, together with the other documents that made up the application. I have a little respite now, the next and hopefully last hearing is on 7 January 2010. A big thankyou to everyone that has helped get me thus far, especially yourself and the formidable foolishgirl.

I will keep you posted of developments and hopefully the case will be another success for the CAG.

Many thanks clynite:D

[Clynite]

Hello all, I've an update I'd appreciate a viewpoint or explanation on. I have received two letters from Restons today. The first is as follows:

 

REPLY TO AMENDED DEFENCE

1. This reply is served pursuant to the order dated 4/11/09. The Claimant joins issue with the Defendant upon his amended defence.

 

2.The claim in this action is for monies outstanding under an agreement between the Claimant and the Defendant and signed by the defendant on *** ("the credit agreement"). The agreement was regulated by the consumer credit act 1974 and included:

(Details of the original loan, ppi and combined figures are cited.)

 

3.By condition 3(5) of the agreement it was provided that the Claimant was entitled to add to any sums due all reasonable administration fees and all reasonable costs incurred in enforcing its rights or remedies under the agreement. By condition 3(2) of the agreement and the schedule thereto the claimant was entitled to charge interest on such sums due at the rate and in the manner described in paragraph 2 above.

 

4.By condition 6 of the agreement it was provided that if the defendant failed to pay any instalment within 21 days of its due date the claimant may serve a default notice on the defendant and require the defendant to pay immediately the total amount payable together with any other sums due under the agreement less any repayments made.

 

5. The defendant failed to pay various instalments falling due under the agreement and accordingly the claimant served a default notice dated *** requiring repayment of the arrears of *** by ***. The defendant has failed to repay the amount required by the default notice.

 

6. It is admitted that the claimant has previously issued proceedings in respect of the outstanding balance under the credit agreement and claim no ***. It is denied (if the same be alleged) that these proceedings are an abuse of process. The claimant will rely inter alia on the following:

a.No judgement was entered for the defendant in the claim no *** and further no admission was made by the claimant.

b. The claimant is not prevented from commencing these proceedings by the operation of CPR 3.4.

c. The claim under the credit agreement is not statute barred under the Limitation Act 1980.

d. There was no agreement between the parties in Claim no *** that the proceedings would be permanently discontinued-the proceedings were struck out by the court.

Paragraph 6 of the Amended Defence is therefore denied.

 

7. As a concession the claimant agrred not to pursue the defndant for the amount outstanding under the loan for the PPI under the credit agreement.

The claimant believes that the facts stated in this reply and defence to counterclaim are true.

 

The second letter just states:

For the avoidance of doubt, the contents of the Reply to Amended Defence will be relied on by our client to oppose your application to strike the claim out.

 

Any expalnation/view would be most welcome.

[citizenB]

Hmmm, I think we expected something like this didnt we. I will alert FG, supasnooper and others who have been helping with this.

[foolishgirl]

I think this was to be expected Clynite. It just means that unless the DJ looking at this is really well clued up (& I have to say the previous indication was that he was on your side ) a hearing will prob. be held on the strike out & you will be able to present your case there.

 

Despite their attempts here I think Restons will be really struggle to present a convincing case but you will have to be really sure of all your facts, & particularly the CPRs & be prepared to be pretty agressive with any arrogant sol they might send to blag on their behalf. If you want someone to hold your hand, CAG have a buddy system & there may be somebody in your area who could attend court with you.

FWIW my comments are below:

 

 

REPLY TO AMENDED DEFENCE

1. This reply is served pursuant to the order dated 4/11/09. The Claimant joins issue with the Defendant upon his amended defence.

 

2.The claim in this action is for monies outstanding under an agreement between the Claimant and the Defendant and signed by the defendant on *** ("the credit agreement"). The agreement was regulated by the consumer credit act 1974 and included:

(Details of the original loan, ppi and combined figures are cited.)

 

3.By condition 3(5) of the agreement it was provided that the Claimant was entitled to add to any sums due all reasonable administration fees and all reasonable costs incurred in enforcing its rights or remedies under the agreement. By condition 3(2) of the agreement and the schedule thereto the claimant was entitled to charge interest on such sums due at the rate and in the manner described in paragraph 2 above.

 

Not seen those conditions but assume they are only entitled to interest up to date of termination of acc. (unless it says otherwise) & certainly not stat. interest at 8%! Get knotted!

 

4.By condition 6 of the agreement it was provided that if the defendant failed to pay any instalment within 21 days of its due date the claimant may serve a default notice on the defendant and require the defendant to pay immediately the total amount payable together with any other sums due under the agreement less any repayments made.

 

Wrong again! They are only entitled to demand arrears under a DN until they terminate the account. I'll get back with refs. for this.

5. The defendant failed to pay various instalments falling due under the agreement and accordingly the claimant served a default notice dated *** requiring repayment of the arrears of *** by ***. The defendant has failed to repay the amount required by the default notice.

 

So where's the proof of service eg. proof of mailing?

 

6. It is admitted that the claimant has previously issued proceedings in respect of the outstanding balance under the credit agreement and claim no ***. It is denied (if the same be alleged) that these proceedings are an abuse of process. The claimant will rely inter alia on the following:

a.No judgement was entered for the defendant in the claim no *** and further no admission was made by the claimant.

b. The claimant is not prevented from commencing these proceedings by the operation of CPR 3.4.

c. The claim under the credit agreement is not statute barred under the Limitation Act 1980.

d. There was no agreement between the parties in Claim no *** that the proceedings would be permanently discontinued-the proceedings were struck out by the court.

Paragraph 6 of the Amended Defence is therefore denied.

 

All rubbish (apart from © ). They failed to follow the court process by due dates etc, they were given ample opportunities to do so with reminders & still failed to do so. Even when the claims was struck out they did not protest. Methinks they want cake when it's already been eaten.

7. As a concession the claimant agrred not to pursue the defndant for the amount outstanding under the loan for the PPI under the credit agreement.

The claimant believes that the facts stated in this reply and defence to counterclaim are true.

 

Big deal! How generous!

 

[Clynite]

Thanks CB and FG for looking in, and giving your valued viewpoint. Out of interest and incase its of value, the issue of the ppi is interesting. I believe they are misleading the court. During the original case, I explained to the DJ that I was unemployed through ill health when the alleged loan and ppi were issued. I argued that I had not given my permission for PPi and in any event it was worthless, as I was not working and it would not be possible to activate it. The DJ accepted this and by default so did Restons. Restons agreed that it was invalid! So to harp on about concessions etc is a load of old tripe! Also, I cannot comment on the CA terms and conditions, as I dont have the original document - they can, effectively say what they want! Look forward to any further info you can provide. In the mean time, thanks very much for your help.

Regards Clynite

[foolishgirl]

Oh, I think you can nail this one Clynite, you seem to have everything at your fingertips. Shout if you need help though or PM if you think there may be prying eyes.

 

Not sure why Restons are even bothering to play the game unless it is to try & make a point to the court. Not sure it would care - the DJ you had doesn't seem to think much of them anyway.

[citizenB]

Thanks CB and FG for looking in, and giving your valued viewpoint. Out of interest and incase its of value, the issue of the ppi is interesting. I believe they are misleading the court. During the original case, I explained to the DJ that I was unemployed through ill health when the alleged loan and ppi were issued. I argued that I had not given my permission for PPi and in any event it was worthless, as I was not working and it would not be possible to activate it. The DJ accepted this and by default so did Restons. Restons agreed that it was invalid! So to harp on about concessions etc is a load of old tripe! Also, I cannot comment on the CA terms and conditions, as I dont have the original document - they can, effectively say what they want! Look forward to any further info you can provide. In the mean time, thanks very much for your help.

Regards Clynite

 

They are probably hoping that both you and the DJ would have forgotten that this was discussed already.. but you wont let them forget, will you

[supasnooper]

Foolishgirl and CitizenB have covered virtually everything.

 

I would only add that you look at the threads below to see why Restons play the game of who blinks first............especially as your DJ told them that they would be toast if they returned.

 

Read fairby's thread from post 250 - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/170484-fairbyblue-mbna-restons-court-13.html

 

and my thread from post 138 - http://www.consumeractiongroup.co.uk/forum/legal-issues/160395-restons-court-action-7.html

 

 

Restons like to play the game and then crumble at the final hurdle........ you will not, as you will know how they play.

[DonkeyB]

Just keep counting all those extra hours of research you're putting in at £9.25 an hour...

[foolishgirl]

 

Restons like to play the game and then crumble at the final hurdle........ you will not, as you will know how they play.

 

Just keep counting all those extra hours of research you're putting in at £9.25 an hour...

 

Exactly!!

[Clynite]

Thanks for recent input from CB,FG,SS ( plus links ) and DB.

With everyones help, I'm staying positive and following your advice.

I'll keep everyone posted on developments.

Regards Clynite:)

[Clynite]

Happy new year to everyone,

Just a recap on events to date. I am at court 7 January. I have taken the advice of all contributers on board, particularly from FG and CB. I will be relying on the following CPR's for my strike out application and civil restraint order : 3.4.2b and 3.11.3.1.3.

And I have the other information as previously posted. In particular the PPI issue that was resolved during the previous claim that was struck out.

If anyone feels there is anything else I should consider or cite, please advise me. Other than that wish me luck and hopefully this will be the end of the matter and another success for CAG.

Best wishes for the new year to everyone.

[foolishgirl]

I wish you luck clynite!

 

You seem to have everything in order in plenty of time, just make sure all the docs. you will refer to in court are labelled so you can easily find them & if the other side try to pull a fast one with for eg. requesting admission of extra docs. etc. object strongly & if the DJ does allow, seek an adjournment. Be prepared for Restons to attempt a settlement immediately prior hearing - it's up to you if you want to listen, you don't have to speak to them but if you do agree anything, make sure that it is put before the DJ for official recording.

[citizenB]

I wish you luck clynite!

 

You seem to have everything in order in plenty of time, just make sure all the docs. you will refer to in court are labelled so you can easily find them & if the other side try to pull a fast one with for eg. requesting admission of extra docs. etc. object strongly & if the DJ does allow, seek an adjournment. Be prepared for Restons to attempt a settlement immediately prior hearing - it's up to you if you want to listen, you don't have to speak to them but if you do agree anything, make sure that it is put before the DJ for official recording.

 

I will second comments made by FG .

 

[citizenB]

Good luck for tomorrow:-D

[DonkeyB]

Hope you got your costs together... hoping for good news.

[Clynite]

Thanks for your support CB, FG and DB.

I just received an email from the court, informing me that counsel for the client had been delayed on the train, the DJ has adjourned the case for 28 days.

So, I'll have to wait for new court date and then try again:(

[lilly white]

hang in there

[DonkeyB]

I bet if you'd been delayed there'd have been a different outcome...

[foolishgirl]

Hope it was the one stuck in the tunnel! He might still be there.

 

Always another day clynite...

[citizenB]

Thanks for your support CB, FG and DB.

I just received an email from the court, informing me that counsel for the client had been delayed on the train, the DJ has adjourned the case for 28 days.

So, I'll have to wait for new court date and then try again:(

 

What a nuisance, at least you didnt make the journey and you live to fight another day.

[banker_rhymes_with]

Hello Clynite!

 

I just received an email from the court, informing me that counsel for the client had been delayed on the train, the DJ has adjourned the case for 28 days.

 

Use the extra time to your advantage.

 

Go back over everything, and also ask yourself what was bothering you the most about this before you were about to leave for Court (or building up to leave for Court).

 

Be as searching as you can, then start again, and get those issues straight, so that when it kicks off again, they won't be bothering you as they were this time.

 

If you can, use family and friends to practice speaking, and working through the arguments. Compile likely questions, and get family to ask you them out of sequence. Practice how you would respond, and how fast you can get to the reference in your Court Bundle. If you fumble when at home and bluster, it will be 10 times worse in Court.

 

P.P.P.P.P.P.P.

 

Proper Prior Planning Prevents P Poor Performance!

 

Cheers,

BRW

[Alphageek]

P.P.P.P.P.P.P.

 

Proper Prior Planning Prevents P Poor Performance!

 

Mind your Ps and Qs Banker

[Clynite]

Many thanks for everyones words of encouragement!

As they say - onwards and upwards - and extra time to go over everything.

Regards