taken to court by HFC/restons... **case dismissed** now marking CRA file again

[manchestman]

Hi, could someone please help me with this, I have posted for the 3rd time in a hope that someone will give me the advice that i so desprately need, I am in court in under 2 weeks and have not clue what to expect, please can someone read my posts, please see below what the eveidence form Restons to present to the court:

 

Basically they are asking for the case to be sticked out as they are saying I am abusing the courts system

 

What they have put on their a&q:

 

Attached is a copy of the credit agreement btween the claiment and the defendant, the claiment is unable to locate the original, signed credit agreement. However in accordance with Regulation 3 of the Consumer Cridit (Cancellation Notices and copies of documants) Regulations 1983, a copy of the ececuted agreement has been provided which does not invlude information that the claiment is permistted to exclude, such as the signatures. The original credit agreement would have contained the completed personal detials of the defendant and the T&C's which included the Prescribed terms.

 

They also attached a defulat notice that the served to me but I have never seen this, they claime because they didn’t receive the default letter back they believe I received it.

 

They go on to say that because they wrote to me to tell me they will not accept letters from me without my signature they wouldn’t respond, and they have received several letters from me which they have not responded to as they can see no sensible explaintion for me to ignore a perfectly valid and reasonable request.

 

It is the cliaments submission that the defence filed is merely a speculative attempt to avoid liability and to delay matters when in reality there is no arguable defence. In the circumstances the claimant does not believe that the defendant has any realistic prospect of succesffully defending the claim and know sof no other reason why the disposal of the claim should await trial.

 

TAKE NOTICE THAT IF THE RESPONDENT TO THIS APPLICATION FOR SUMMERY JUDGEMENT WISHES TO RELY ON WRITTEN EVIDENCE AT THE HEARING IT MUST FILE A WITNESS STATEMENT AND SERVE COPIES ON THE CLAIMANTS SOLICITORS SEVEN DAYS BEFORE THE SUMMERY JUDGEMENT HEARING (what does this mean?)

I have always been lead to believe that without a signature on a CCA they dont have a leg to stand on, but they say in the a&q that they dont need that signature??????

 

Really appriciate anyones help with this

Thanks

Is this all they are relying on in court, or have they submitted a WS in response to yours?

Is it possible for me to see the exact full text they will rely on in court, please?

tomorrow, I will help as best as I can with a defence, and then hopefully, someone else will add to, comment, chip in or correct me, or you can click the black triangle for site help.

[manchestman]

Hi, just had another late thought before going off to bed! On the recon agreement, what rate of interest do they state as being charged?

(I presume you do understand what the prescribed terms are, that your agreement must include to be a properly executed agreement?)

[whatamess]

Morning, today is a positive day

 

Ok yes this is all they are relying on in court they have not replied to my WS i recived theres on the same date i got the court date. (Will also scan the court letter and email tonight)

 

I will scan everything that i think you will want to look at today and email it to you tonight (hope this is ok?)

 

Also they have charged 0% interest on this loan, I am assuming this is because I got into financial trouble but like i have always said I didnt know anything about this or that it was to be paid over 120 months which would have finished in Sept this year (shock horror) I have never seen this agreement, if i had im not sure i would have agreed to have this loan paid over 120 months.

[manchestman]

Morning, today is a positive day

 

Ok yes this is all they are relying on in court they have not replied to my WS i recived theres on the same date i got the court date. (Will also scan the court letter and email tonight)

 

I will scan everything that i think you will want to look at today and email it to you tonight (hope this is ok?)

 

Also they have charged 0% interest on this loan, I am assuming this is because I got into financial trouble but like i have always said I didnt know anything about this or that it was to be paid over 120 months which would have finished in Sept this year (shock horror) I have never seen this agreement, if i had im not sure i would have agreed to have this loan paid over 120 months.

I am so glad you feel in a positive frame of mind today. I'm just looking out of my window onto the rolling hilld before me and though it is cold, it is a beautiful day!

I do think this might be a SJ hearing, and I will just read the cpr that applies and check whether they can submit a WS in reply to yours.

Have a good day

[AndyOrch]

Hi Manc /Whata

 

There seems to be some confusion as to this hearing.Whether or not its a CMC or a SJ application.The WS that we have prepared was in objection to a SJ application as far as I was aware.

Check with the Court of the hearing.ie Have they made application for SJ.

If it is and they have, a copy of the AN should have been filed with the Defendant and a copy of their WS in support of said application.

 

Regards

 

Andy

[manchestman]

CPR 24.5

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –

(a) file the written evidence; and

 

(b) serve copies on every other party to the application,

 

at least 7 days before the summary judgment hearing.

 

(2) If the applicant wishes to rely on written evidence in reply, he must –

(a) file the written evidence; and

 

(b) serve a copy on the respondent, at least 3 days before the summary judgment hearing.[/Quote]

CPR = Civil ~procedure Rules

 

If they attempted to submit any other evidence/WS now, I would be very annoyed and certainly bring it immediately to the judge's attention. 3 days before = Monday (maybe Tuesday at a pinch).

[manchestman]

Hi Manc /Whata

 

There seems to be some confusion as to this hearing.Whether or not its a CMC or a SJ application.The WS that we have prepared was in objection to a SJ application as far as I was aware.

Check with the Court of the hearing.ie Have they made application for SJ.

If it is and they have, a copy of the AN should have been filed with the Defendant and a copy of their WS in support of said application.

 

Regards

 

Andy

Thanks Andy, have been pm'img Whata and still not sure till scan comes over.

To Whata, I know you are in work, but at this stage, it is definately worth doing what Andy suggests and phoning the court and getting them to confirm exactly what the hearing date is for? What was the application for?. The County Clerks are very friendly and helpful, they understand many people don't understand court process

[manchestman]

CMC = Case Management Conference

[whatamess]

Hi guys

 

MANC i have sent you a message withe the court letter details looking like this is a SJ hearing, does this mean I will need to go back on another date?

 

thanks

[manchestman]

Right, Andy, here we go ...

 

The hearing of the claimant's application for see atached (see copy attached) will take place at xxxx on the 26th November 2010 at XXXXXX

 

The attached application of notice from Restons says:

1. An order to stike out the defence under part3.4(2) of the civil procedure Ruels of the basis that the defence discloses no reasonable grounds for defending the claim and is abuse of the courts process.

2. In the alternative, an order for summery judgement against the defendant under part 24.2 of the civil procedures Rules.

The defendant has not real prospect of successully defending the claim and there is no other complelling reason why the case should be disposed of at a trial.[/Quote]

[manchestman]

Andy, does this mean we also have to deal with issue 1, by using Reston's negative behaviour over refusing to accept Whata's CPR requests without signature etc, resulting in embarrassed defence?

[AndyOrch]

So yes an application to strike out the defence or alternatively summary judgment.

Is there no WS attached to the application or reasoning on the application apart from that?

[AndyOrch]

Yes Manc its a 2 prong application:-

To strike out the Defence and or alternatively Summary Judgment.

CPR 24.5 as you have posted.

 

However they are quoting CPR 3.4(2)

 

Power to strike out a statement of case

 

3.4

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

 

(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

 

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

 

© that there has been a failure to comply with a rule, practice direction or court order.

 

 

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.

 

(4) Where –

(a) the court has struck out a claimant’s statement of case;

 

(b) the claimant has been ordered to pay costs to the defendant; and

 

© before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,

 

the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid.

 

(5) Paragraph (2) does not limit any other power of the court to strike out a statement of case.

 

(6) If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit –

(a) the court’s order must record that fact; and

 

(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

[AndyOrch]

Defences which appear to fall within rule 3.4(2)(a) or (b)

 

3.1

 

A court officer may similarly consult a judge about any document filed which purports to be a defence and which he believes may fall within rule 3.4(2)(a) or (b).

 

3.2

 

If the judge decides that the document falls within rule 3.4(2)(a) or (b) he may on his own initiative make an order striking it out. Where he does so he may extend the time for the defendant to file a proper defence.

 

3.3

 

The judge may allow the defendant a hearing before deciding whether to make such an order.

 

3.4

 

Alternatively the judge may make an order under rule 18.1 requiring the defendant within a stated time to clarify his defence or to give additional information about it. The order may provide that the defence will be struck out if the defendant does not comply.

 

3.5

 

The fact that a judge does not strike out a defence on his own initiative does not prejudice the right of the claimant to apply for any order against the defendant.

[whatamess]

Thanks for explaining that to me Andy, what is the next step?

 

Manc do you still require me to scan all the info to you?

Thanks

[manchestman]

Andy, Whata says this is all that is supporting their case. We will get exact text tonight, but this is close enough for now. Underlining Emthasis is mine, not Whata's.

Basically they are asking for the case to be sticked out as they are saying I am abusing the courts system

 

What they have put on their a&q:

 

Attached is a copy of the credit agreement btween the claiment and the defendant, the claiment is unable to locate the original, signed credit agreement. However in accordance with Regulation 3 of the Consumer Cridit (Cancellation Notices and copies of documants) Regulations 1983, a copy of the ececuted agreement has been provided which does not invlude information that the claiment is permistted to exclude, such as the signatures. The original credit agreement would have contained the completed personal detials of the defendant and the T&C's which included the Prescribed terms.

 

They also attached a defulat notice that the served to me but I have never seen this, they claime because they didn’t receive the default letter back they believe I received it.

 

They go on to say that because they wrote to me to tell me they will not accept letters from me without my signature they wouldn’t respond, and they have received several letters from me which they have not responded to as they can see no sensible explaintion for me to ignore a perfectly valid and reasonable request.

 

It is the cliaments submission that the defence filed is merely a speculative attempt to avoid liability and to delay matters when in reality there is no arguable defence. In the circumstances the claimant does not believe that the defendant has any realistic prospect of succesffully defending the claim and know sof no other reason why the disposal of the claim should await trial.

 

TAKE NOTICE THAT IF THE RESPONDENT TO THIS APPLICATION FOR SUMMERY JUDGEMENT WISHES TO RELY ON WRITTEN EVIDENCE AT THE HEARING IT MUST FILE A WITNESS STATEMENT AND SERVE COPIES ON THE CLAIMANTS SOLICITORS SEVEN DAYS BEFORE THE SUMMERY JUDGEMENT HEARING (what does this mean?)

 

I have always been lead to believe that without a signature on a CCA they dont have a leg to stand on, but they say in the a&q that they dont need that signature??????

 

Really appriciate anyones help with this

Thanks

[AndyOrch]

Thanks for explaining that to me Andy, what is the next step?

 

 

If point one of their application is vetoed (and you will go through your defence and with all the advise from Manc make sure you know why it shouldn't be struck out)

then in theory point 2 will be vetoed also and the claim will continue to trial (which will allow you time to brush up on case law).

 

Andy

[manchestman]

Thanks for explaining that to me Andy, what is the next step?

 

Manc do you still require me to scan all the info to you?

Thanks

Yes, please, if you have time. There is no beating looking at the actual documents, (As we keep trying to tell creditors!) But if that is all there is to the court letter, no need there, just the exact statement from Restons please

[whatamess]

Ok Manc I am go to type it out as If i wait til tonight its another day gone and im worried that im running out of time. Bare with me as it will be long

[AndyOrch]

Posted by Manc :-

 

It is the claimants submission that the defence filed is merely a speculative attempt to avoid liability and to delay matters when in reality there is no arguable defence. In the circumstances the claimant does not believe that the defendant has any realistic prospect of successfully defending the claim and know sof no other reason why the disposal of the claim should await trial.

 

Merely the usual rantings of these Muppet's when you submit a defence and they are tissed off.They would rather have trial without defence their DJs their Courts their laws and they are accountable for nothing

honest guv!!!!!!

 

Regards

 

Andy

[whatamess]

Just seen your message Manc so I wont type it up will scan and email so you can look tonight as agreed.

 

Andy - Thanks for the info, was hoping i would only need to go to court once I have no more holiday left in work so not sure how im going to manage another court date.

[AndyOrch]

Do you have a separate trial date Whata.This hearing is additional to the claim.Anytime taken from work without pay can be reclaimed in your costs should you be successful.

Point to be aware of :- the costs for the SJ hearing by the Claimant is at the DJs discretion and separate to the claim costs.

 

Regards

 

Andy

[whatamess]

Sorry Andy no i do not have another date just the 26th

[AndyOrch]

Have you submitted an Allocation Questionnaire and if so received a Notice of Allocation?

[whatamess]

Hi Andy, yes i submitted my A&Q sometime ago.

 

Today i have received a letter from Restons with a Cost Schedule for the upcoming hearing, does this mean i have to pay this regardless of the outcome or only if I loose?

 

thanks