RBS credit card claim won now new claim after sale by OC

[hammyhound]

Well I have received my hearing date for my application and it is not for another couple of months!!!!

 

In the meantime, the court ordered that the claimant produce the original POC and my defence to the original claim. They had to send it by a certain date. They sent it 5 days after that date. What is the point of the court giving unless orders and then allowing documents to be sent so long after that date.

 

Do you think the judge wants to see what the original POC was and is this good news for me.

 

Surely the same debt is the same material facts and therefore they should have asked for permission.

 

HH

[hammyhound]

Polite bump if I may, is it possible that a judge would look at the documents and decide before my hearing that the claim should be struck out or will they wait for the hearing and have us battle it out at court.

 

HH

[pt2537]

Polite bump if I may, is it possible that a judge would look at the documents and decide before my hearing that the claim should be struck out or will they wait for the hearing and have us battle it out at court.

 

HH

 

Ok, it cannot be dealt with without a hearing really, as the problem you face is that an exparte order would almost certainly be subject to a application to set aside and costs.

 

The proper place is before the court for both parties to argue their arguments and then for the judge to decide who is right

[hammyhound]

Thanks PT

 

They have also made an application for my defence to be struck out which is going to be listed at the same hearing as mine.

 

Their excuse for the withdrawal of the previous proceedings - they could not locate the DN!!!!!!

 

HH

[underdog13]

Best of luck with this one, HH:-)

[hammyhound]

My application is coming up soon and I have to file written evidence - I presume in the form of a statement do I just word the statement as is ie claim issued, then discontinued by consent, fresh DN and TN lodged and then new proceedings commenced. Should I include their letter as an exhibit saying "the material facts are different we couldn't locate the DN and TN last time so that is why we discontinued. I also notice on the TN that they have included my current account and yet in their application they say it is not relating to the current account only the loan account. Would anything else need to go in. The DN btw is invalid only gave me 13 days as there was a bank holiday in the postage time.

 

HH

[hammyhound]

Just had a thought, can I use the Henderson case in my argument.

 

Quote

 

The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.

 

Sir James Wigram VC said: “In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

 

They did not proceed with the earlier case as they would have lost due to the fact they couldn't find the DN and TN so in the court's eyes they could not have succeeded, they would have lost and are now trying to rectify by issuing a new DN and TN and commencing new proceedings. They could not have brought the case forward due to their negligence in my eyes. They don't say in their letter we did not issue a DN and TN only they could not locate it so as far as I can say they terminated the agreement and thereby cannot reissue.

 

Any thoughts anyone, have to start preparing my statement over the next couple of days.

 

HH

[DonkeyB]

Have they actually issued you with a new default notice?

 

They can’t just recreate a new one, plus a TN, and go back to court – they have to allow you the opportunity to remedy the breach.

[hammyhound]

Yes, withdrew from court and then issued new DN and TN and said in their application "we have now issued a new DN and TN". The DN is invalid as it only gave me 13 days due to one of the days included in the postage time being a bank holiday and therefore terminated 1 day early.

 

HH

[DonkeyB]

Did they put the application in before the DN remedy date had expired?

 

They still can’t enforce in court if the notice is bad! You need to look at using CPUTR here. In my view, they are becoming vexatious.

[hammyhound]

No they reissued first and once they received my application for a strike out due to abuse of process they did the same by applying to strike out my defence both listed at the same time.

 

They don't know the notice is bad but I thought I should concentrate on the abuse of process in my application and also when they reissued the DN and TN the DN is invalid so I can cover all points.

[DonkeyB]

...which means they can go back again and reissue a compliant DN.

 

That's why CPUTR is useful.

[pt2537]

CPUT regs arent open for a private individual to advance a case under though

 

However, there is the OFT guidance on responsible lending which may help further an unfairness complaint

[hammyhound]

So are you saying there is no abuse of process here - I am confused. The first DN in the first proceedings was compliant - they just could not locate it and because they knew they could not locate it and lose at trial they withdrew their claim - so what you are saying they can keep withdrawing time and time again until they get it right.

 

HH

[hammyhound]

Thanks for your help guys so this seems to have turned on its head - I thought a claimant couldn't have a second bite of the cherry if previously they had issued, I filed a defence, AQs filed and then they withdrew.

 

HH

[postggj]

now ime confused

 

the lawe is quite clear on this ref part 38 civil procedure rules

38.7

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

 

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

[DonkeyB]

I imagine they would claim the facts are different, ie. the account actually is now terminated whereas it was not before. This scenario needs to be tested in court for abuse of process.

[postggj]

stay with me on this and lets have a healthy debate

 

1/ the oc terminated the account after defaulting

2/ oc sells account to dca

3/ as account has been terminated, there is no account to terminate or default again

[DonkeyB]

Think this one has been done to death! Look up pt2537's recent case v Link and MBNA. It effectively stated that although enforcement cannot be made on the back of a bad notice, a bad notice can be rectified. Also, if the DN was not compliant, the account could not be terminated. But I'm not aware yet of a real life case where going back to court after reissuing a compliant DN has been tested, either for abuse of process or simply for permission to re-try.

[postggj]

ime of the opinion the whole sinario is a breach of process and vexatious

 

i hope the judge throws the book at them in costs

 

i realy dont think the dca will try and run with this

clutching at straws comes to mind

[DonkeyB]

Will be interesting to see where it leads. More than one way to skin a cat.

 

(Hmmm... my moggie just did a runner...)

[postggj]

has this been tested in court yet on any claim

[Guest]

hammyhound

some cpr 38.7 info for eg! http://www.consumeractiongroup.co.uk/forum/showthread.php?235502

 

it's a shame that there doesn't seem to be a citation/further details re this CA case? does anyone know if it was reported?

[hammyhound]

Post, the account has never been sold it is still with the OC. In their reply to defence in the original proceedings they state "the claimant served a DN on and FD on a screen print shows that the DN was sent. Now they are not saying they didn't send it or that it was invalid/valid all they are now saying in the present proceedings are "we couldnt locate a copy"

 

Is is worth stating in my statement that the second proceedings were served by a different firm of solicitors and once I informed them that this had been the subject of previous proceedings which were withdrawn they handed it over to the original solicitors.

 

I thought my argument was basically an abuse of process, I didn't really want to go down the lines of the present proceedings DN as I automatically thought "discontinued once you can't come back with the same matter" but everyone seems to have different views.

 

HH

[postggj]

"discontinued once you can't come back with the same matter" but everyone seems to have different views.

 

IME STILL OF THIS OPINION BUT TIME WILL TELL