County Court Claim

[AndyOrch]

Discontinuance and subsequent proceedings

 

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.

 

Simply raise the above at the hearing and request it to be struck out on the above grounds.

 

Andy

[Jamesx81x]

Yes i have written to the court stating the above but not sure if it will be read in time so have also listed it in my defence statement along with all the other relevant points

 

Is it possible for a judge to ignore the fact they have ignored cpr 38.7 and let their claim carry on? I ask as after what i have read on various posts some judges seem to make up their own mind on things.

 

Thanks

[AndyOrch]

Its a case of not letting him forget it the CPR is quite clear. Dont accept it.

[hammyhound]

How did they discontinue and did you receive the official order from the court.

[Jamesx81x]

Thanks Andy i will do that! should a hearing have taken place for a decision? Just so i know exactly what to say

 

Yes hammy I received a notice of discontinuation stating they were discontinuing the entire claim

[AndyOrch]

What does it state on your Notice of Hearing James? To consider their claim ? I'm not aware of the details or stage of your case.

If the hearing is for the above and I surmise it is as they have brought this claim pursuant to CPR 38.7 just be armed with a copy of their NoD

and the relevant CPR to argue your case.

 

Andy

[Jamesx81x]

The hearing is in relation to their second claim and has the claim number to do with the second claim on the notice.

 

There is no indication that it is a hearing to decide if the claim can go ahead just that it is a hearing in relation to the creditors second claim

[AndyOrch]

Well thats what it will be then , cant be anything else.

 

Andy

[Jamesx81x]

Thanks as for the hearing itself it is a return of goods hearing in relation to HP and associated insurances!

 

Previously terminated after ignoring 3 attempts to reach an agreement but default was defective! Discontinued in full after I submitted defence!

 

Then claimed as agreement had been terminated on a defective notice then agreement was still in place, proceeded to terminate for a second time and issue further proceedings without seeking permission

 

Hearing is due shortly and that's currently a brief outline of the claim and where it currently stands

 

Thanks

[AndyOrch]

" Thanks as for the hearing itself it is a return of goods hearing in relation to HP and associated insurances!"

Ive never heard of one of them James or have a clue what it is, is that what it states on your Notice of Hearing?

 

Andy

[Jamesx81x]

Yes thats what it states. It is for HP agreements such as vehicles and other products etc it is just named a return of goods hearing as they go for the goods or the equal money value.

 

It is a HP Agreement regarding a vehicle i have with related insurances.

 

They sent 2 defaults, one for the HP and one for the Loan which to me if they require separate defaults would suggests there are 2 separate credit accounts on the one agreement but that is an area of the act i have no idea on.

 

The total amount paid for the HP side of the agreement is incorrect as i have paid more than they state and the arrears noted on the default notice are also incorrect. So with a second chance they have got the figures wrong again. I do not see why it is up to a consumer to have to attend a hearing to point out the inaccuracies in figures of a major financial organisation. The courts really should be taking it into consideration.

 

Thanks

[AndyOrch]

Take a read here Sticky: Multiple agreements falling within section 18 CCA 1974

 

Also this is your man re Car and HP if you can get his attention postggj

[Jamesx81x]

I have read over the posts but there was the case regarding multiple agreements so not sure how it affects it all, in my view they are separate credit agreements hence the separate default notices and HP and GAP Loans(PPI) fall under separate agreements for purposes of the act.

 

The case i mention is:

 

http://www.bailii.org/ew/cases/EWCA/Civ/2009/1135.html

 

Saying that though it states this on the ruling - So far as the agreement relates to goods it is a debtor-creditor-supplier agreement within section 12(b), since it provides restricted-use credit under section 11(1)(b). So far as it relates to cash it is a debtor-creditor agreement within section 13© and the credit it provides is unrestricted-use credit. This is therefore a multiple agreement. In that the whole agreement falls within several of the categories of agreement mentioned in this Act, it is, by section 18(3), to be treated as an agreement in each of those categories. So far as it is a debtor-creditor-supplier agreement providing restricted-use credit it is, by section 18(2), to be treated as a separate agreement; and similarly so far as it is a debtor-creditor agreement providing unrestricted-used credit.

 

As it is an agreement for goods and the loans are treated as 'cash loan' the above means my agreement is a multiple agreement.

 

Furthermore i stopped making payments on the loan side due to a mis-selling issue i had(currently ongoing) but always maintained the HP side until i defaulted. What they have been doing is taking a portion of the HP and using it to make payments in the loan. How exactly can they justify doing that?

 

So complex to me some of the areas as i am just a Firefighter by trade trying to stand up for my rights, it seems to me major organisations get away with what ever they want.

 

Thanks for the advice i really do appreciate the help.

 

James

[Jamesx81x]

With Hire Purchase and associated Loans (PPI) is it,

 

Section 9 for the Hire Purchase and the Loan Insurance falls under Section 12(b) then does Section 18(2) apply due to the agreement falling into separate sections of the consumer credit act?

 

Thanks

[AndyOrch]

Your understanding is correct James.

 

 

Andy

[Jamesx81x]

Thank you Andy really appreciate the advice you have given.

 

Have nailed my defence (or so i beleive ) can only leave it up to the judge now to hopefully see the number of areas of the act the creditor has breached.

 

Will post up after the hearing

 

James

[AndyOrch]

Best of luck with this James and keep me posted.Thanks for your rep BTW.

 

Not sure if you have seen this thread chez's HP agreement problems some useful links to case law covering faulty HP/Multiple.

 

Regards

 

Andy