RBS taking me to court - *Struck Out* ** New claim issued by RBS **

[dpac123]

Hi Andy, I'm dropping the N244 into the court post box very early in the morning so they get it first thing. I read your advice and need to clarify to ensure I get it right:

 

 

Just submit it and serve them a copy...still without hearing and same fee. Need to get their consent beforehand?

 

Request an order pursuant to CPR 23.8 (with their agreement) What if they don't agree?

 

Do I quote CPR 23.8 AND CPR 26?

 

 

 

On form N244, what do I answer:

 

 

Have you attached a draft of the order you are applying for? What does this mean?

Who should be served with the application? Claimant? Court?

What information will you be relying upon, in support of your application? Do I select "the evidence set out in the box below" and provide a copy of our complaints to the FOS and ICO?

 

 

Sorry to sound dense but this is unknown territory!

[AndyOrch]

Basically if you can get their consent it simplifies and adds weight to the application...but in the absence the application can still be made (still serve a copy on the claimant)

 

So under what order are you requesting

 

 

It is respectfully requested that the court grant a stay on proceedings for 28 days pursuant to CPR 26.4 PD2A. This application be made without an hearing CPR23. 8 © The defendant will endevour to seek the claimants consent and agreement....to allow time for promising further mediation.

And to allow for the outcome of current FOS and ICO investigations which will assist in resolving this matter should mediation fail.

 

This application is made mindful of the Overriding Objectives and so that this claim may proceed justly and expeditiously.

 

 

Originally Posted by andyorch;

The Draft needs to be properly formatted correctly...... format as follows:-

 

 

 

Edit to suit

 

 

#### START OF ORDER ####

 

In the ......... county court

Claim No. ...

 

Before

 

District Judge ………

 

 

Dated ……… 20…

 

 

Claimant A

 

and

 

Defendant B

 

 

 

Draft/ORDER

 

 

 

 

IT IS ORDERED THAT:

 

1. The claim be stayed for 28 days pending further mediation

2. At the end of the stay the file will be referred to a judge for further directions/allocation.

3. Any party may apply for a stay to be lifted.

 

#### END OF ORDER ####

[dpac123]

So I need to create a draft order and attach to the N244?

[AndyOrch]

Yes that's why I have provided it above:-)

[dpac123]

Thanks Andy.

 

 

We don't know who the DJ is going to be - does that matter?

 

 

In the ......... county court

Claim No. ...

 

Before

 

District Judge ………

 

 

 

Also, Q.9 - Who should be served the application? Claimant?

Q.10 What information will you be relying on, in support of your application? witness statement/statement of case/evidence below - what should I write?

[AndyOrch]

Just insert District Judge...most probably the one that's already dealing with the claim

 

Yes serve the claimant

 

No evidence required just state see draft direction.

 

Dpac I would be phoning the Sols up first to try to get agreement before making the application...there is no guarantee it will succeed without both parties consent.

If they agree simply amend the order to " with the claimants consent".

[dpac123]

Ok will phone them first thing. Are they likely to agree, given what you know of this case as per the thread?

[AndyOrch]

Well they know you are still mediating and you state they are aware of the FCO/ICO investigation...it would allow both parties breathing space...so its in the interest of both parties.....put it to them diplomatically:-)

[dpac123]

Not a good response - they have said they won't consent to the application to the court and won't accept an offer without a charging order behind it. Apparently the claimant wants to "secure" the debt via a charging order but "you have my word they won't enforce it". I said something like "sorry I don't believe you" and asked them exactly what they would be looking for as a settlement that didn't involve a charge - at least if we know we can decide over the weekend whether we can stretch to it or whether to submit the application on Monday and face the music next Thursday at court.

 

 

They managed to sidestep my question about how court costs had escalated so much in 4-6 weeks and didn't even mention the ICO and FOS investigations.

 

 

Waiting to see what kind of figure they will come back with if any, and would appreciate any thoughts.

 

 

PS. Another small matter, and I don't know if this works in our favour or not - our house was repossessed last year - the repossession order was granted but we cleared the arrears and have been up to date with payments since so are still in the property. The repossession order still stands but could mean claimant wouldn't get as much if it was repossessed and sold at peanuts.

[AndyOrch]

Dont let the Charging Order aspect of the negotiation cloud your judgment .....You can insist within a Tomlin Order that no Order for Sale be ever considered...if they are true to their word.There is nothing wrong with having a CO as security against the debt providing that condition is attached.

 

There is no point submitting an application now as its far too late so scratch that also......if there is any further negotiation remember their costs are irrelevant and should not be considered.

[dpac123]

Hi Andy, does a charging order have to result in a CCJ?

[AndyOrch]

Hi Andy, does a charging order have to result in a CCJ?

 

Not if its voluntary.....if you agree by way of a Tomlin /Consent Order then the claim can be stayed (no judgment ) but they are allowed to proceed with registering a Restriction/Charging Order with your consent

[dpac123]

Not if its voluntary.....if you agree by way of a Tomlin /Consent Order then the claim can be stayed (no judgment ) but they are allowed to proceed with registering a Restriction/Charging Order with your consent

 

If we stay up to date on payments can they enforce it or does it just sit there until debt is repaid or property is sold?

[AndyOrch]

Providing their are no arrears in the consent and payments are up to date then there are no grounds to to proceed to sale.Basically yes it just sits as security on the debt.

[dpac123]

Hi Andy, I know we lost a couple of days, but I am thinking of driving to the court tonight to post the N244 tonight, email to court and claimant and follow up on it tomorrow. Surely a judge would be available to consider it before Thursday? Also should I include copies of FOS and ICO acknowledgements and would this be admissible in court as we haven't update our list since the exchange of WS in June?

[AndyOrch]

I doubt it very much dpac...it should have been made at least 7 days prior...and judging from their latest response..would probably be made in vain.

Concentrate either on settlement or preparing for trial.

 

Regards

 

Andy

[dpac123]

We submitted the application and have been told the judge will look at it tomorrow - the day before the trial! We have also been put on notice of a possible double booking so the trial date may move anyway. Still struggling to reach an acceptable way forward with NatWorst as they still want a charge and CCJ - we would rather see what the judge has to say.

 

 

We have provided the court with responses from ICO and FOS confirming that investigations are ongoing so hope the judge will wait until these are resolved. In terms of preparing for a trial - what do we do? Rehearse arguments, swot up on facts - never been here before so really not sure how to get ready...

[dpac123]

We submitted the application and have been told the judge will look at it tomorrow - the day before the trial! We have also been put on notice of a possible double booking so the trial date may move anyway. Still struggling to reach an acceptable way forward with NatWorst as they still want a charge and CCJ - we would rather see what the judge has to say.

 

 

We have provided the court with responses from ICO and FOS confirming that investigations are ongoing so hope the judge will wait until these are resolved. In terms of preparing for a trial - what do we do? Rehearse arguments, swot up on facts - never been here before so really not sure how to get ready...

 

Trial is due tomorrow and judge looked at the application and decided not to delay proceedings because NatWest objected to it.

 

However, the good news is that the court was double booked so the trial has been postponed, which will give us more time to prepare a better defence. Not how long it takes to relist but court said we could be looking at January.

[AndyOrch]

A suspected dpac...still a little breathing space now.

[wendyboats]

Keep going in what you believe in here dpac..........The guys here know their stuff but you must be committed to what is truth and just, and by way of this Iv always believed justice will prevail !

 

 

Positivity brings positivity and I wish you all the best for up and coming court case WB XX

[dpac123]

New court date is 16th January and I came across this thread and wondered if the principle of "res judicata" applies here. We have a letter from the court stating:

 

 

"Case against Mr P discontinued

Case against Mrs P struck out"

 

 

Followed by a quote from the presiding judge:

 

 

"I do not understand the problem - are there fresh proceedings against Mrs P?"

 

 

Just to recap, the case was struck out because NatWest failed to submit a WS before the deadline. In fact they didn't submit one at all. The court struck it out and several months later Nat West notified us that the claim had been "discontinued".

 

 

The attached thread seems very similar to our situation: http://www.consumeractiongroup.co.uk/forum/showthread.php?274161-Claim-struck-out-claimant-trying-to-re-issue-%28abuse-of-process%29-then-read-on

 

 

Any thoughts?

[tedney]

http://www.consumeractiongroup.co.uk/forum/showthread.php?274161-Claim-struck-out-claimant-trying-to-re-issue-%28abuse-of-process%29-then-read-on

 

 

Any thoughts?

JMTW:

I am no expert, but having quickly read the other thread, it would seem that, in particular, posts 10 and 12 on that thread could be relevant to Mrs Dpac's case. However, I did not see any reference to "discontinued cases" on that thread. Could it be that a continuation is permissible on Mr. Dpac's case?

Maybe someone with more expertise can assist here.

[dpac123]

Both cases relate to the same loan, so the claim was struck out. The new claim is against both of us, so even if their discontinuance against me was valid, presumably they would not be able to pursue both of us again?

[tedney]

Both cases relate to the same loan, so the claim was struck out. The new claim is against both of us, so even if their discontinuance against me was valid, presumably they would not be able to pursue both of us again?

 

Just to clarify then: 2 claims raised by Nastywest initially, 1 to Mr Dpac and 1 to Mrs Dpac. Court issued judgment (?) on these 2 cases, Mr. D's discontinued and Mrs D's struck out?

Third claim raised by Nastywest on Mr and Mrs Dpac, subject of a hearing on 16th January?

As I have said, I am no expert, but I would think that perhaps the Particulars of Claim for each case need to be carefully considered so as to establish if your "res judicata" applies at all.

[dpac123]

The claim against both of us is for the same debt. NatWest failed to submit a witness statement in June 2012 so the court struck it out. NatWest then sent a notice of discontinuance address to me only. The court then confirmed by letter earlier this year that case against me was "discontinued" and case against Mrs was "struck out".

 

 

They then issued a new default notice in April 2013. The basis of the case is the same and I have enough evidence to show they were in contempt of the initial order of the court to submit a WS by 12th June 2012.