**URGENT**Help needed with defence against Restons/HSBC

[AndyOrch]

Hi Kay

 

Let them serve it...they will be aware its 3 days to the hearing and it will be treated as a Supplemental WS. Don't ring them as that will appear as you have agreed permission to serve.

 

Regards

 

Andy

[kayastley]

Andy,

I've just sent an email to them

"Dear Miss Tipping,

Please send any additional documents you feel are necessary to [email protected], [email protected] and [email protected]. All the emails are linked so if any email correspondence is received it is shown.

With kind regards"

 

Oh Andy! Have I just given them permission to serve the documents??? I didn't know. I feel sick

[AndyOrch]

Its all in the detail Kay ask yourself why did they request you to ring by 3.00pm...there was no need for them to ask you.... they could just email irrespective.So you gave permission.Supplemental WS can be served 3 days prior to any hearing with the other parties consent.

 

Not to worry lets proceed and PM the details of its contents as we seem to have a few guests with us since your post #150.

 

Regards

 

Andy

[kayastley]

Thanks Andy, I'm a bit of a wreck at the mo, as I'm still trying to find counsel to represent me and no one will do it for legal aid or under £1k, so it looks like I'm going to have to do this alone, just flapping a bit.

Anyhow! Deep breath, move on! I haven't had the Supplimental WS back from Restons as yet but as soon as I do, I'll post it up. Do you need anything else?

Thank you

x

[kayastley]

Good evening,

Managed to edit the supplimental Witness Statements received today from Restons and have posted them up. I have also attached the Case Management notes that they make reference to in the Supp WS.

Any comments regarding cross examination points to raise or general comments are most welcome.

Kind regards

Kay

[AndyOrch]

Good evening Kay

 

Well it is what it is...your WS has obviously hit a nerve were the claimant has to submit a last min WS to cover its previously stated deficiencies.The WS should be challenged as you was fooled into consenting to its service..it has been served 3 days prior the hearing so that you will not have time to respond.

 

Even if the courts grants its submission its contents are really negligible and embarrassing and smacks of desperation to a professional legal Solicitors.

 

It quite clearly states the acceptance of the amended agreement until 2043 ... definition of amended and temporary :-

 

To alter (a legislative measure, for example) formally by adding, deleting, or rephrasing.

 

lasting, existing, serving, or effective for a time only

 

 

So you define Promissory Estoppel the doctrine of promissory estoppel prevents one party from withdrawing a promise made to a second party if the latter has reasonably relied on that promise.

 

Wit regards to the service of the Default Notice well when was the last time the Post Office or Courier informed you that they had not delivered your letter? Its nonsense and speculative.

 

Regards

 

Andy

[kayastley]

Thank you Andy,

I read it the same way but it's always nice when someone neutral agrees (as I am a little bit biased). If successful at the hearing on Friday, can I ask for an costs to be paid by the applicant or does that only apply at a full hearing. Also,(sorry) can I take a member of my family into court with me who knows the case really well as my Mackenzie friend? as I can't find any counsel (under £1k) to represent me.

With kind regards

Kay

[AndyOrch]

Yes you can request costs...should the application be denied.Yes you can use a Mackenzie friend but let the Court know in advance.

 

Andy

[AndyOrch]

One last point you must raise the circumstances of how the supplemental was served...you was not formally asked ( copy of email) the date it was served (3 days prior so you cant respond) and that you object to it being submitted as evidence and ask the Court to disregard it.

 

Work out your Costs in preparation for the Hearing research prep of WS and travelling and time off work.Email a copy to the Claimants on Friday Morning.

[kayastley]

Andy, you must of read my mind when posting your last post. I was just wondering how to work out my costs, thank you. Regarding letting the Court know in advance about a Mackenzie Friend, how do I do that? I'm just conscious of the timescale, with the hearing on Friday.

Kay

[AndyOrch]

Just ring or call in the County Court and inform them ... shouldn't be a problem as you will of advised.Some DJ can be awkward and insist on advance warning.

[kayastley]

I'll give them a call tomorrow. I've said thank you to you so many times, it feels like it's not enough anymore but it really is sincere. Thank you Andy and the CAG site team.

I'll update as soon as there is news. Wish me luck

Kay

x

[kayastley]

Dear All,

I apologise for not replying sooner but I had to go straight to work following the the hearing and didn't finish until 11:30 last night.

Well! it went well. The Judge dismissed the Claimants Application for Summary Judgement on the basis that:

There is a triable issue to be examined further at trial in regards to our Claim that an effective Default Notice has never been served and the Claimant cannot produce any evidence regarding method or proof of service.

That the system template letter submitted by the Claimant confirming the agreed payment arrangement (in the absence of the actual letter) was only advising that the agreement was 'concessionary' and did not explicitly state 'Temporary.' The Judge's view was that word 'concessionary' did not in fact mean for a fixed time only and disputed the Claimants right to unilaterally and uneviquicably demand more money after agreeing to the concessionary payment arangement.

 

However, we didn't get it all our way. There was an issue regarding the clarity of whether the £40 repayment plan included repayment for the personal loan or overdraft facility. There was also an issue with the POC's on the Claim form regarding this which, to be honest, I didn't fully understand. The upshot is, that the payment arrangement was in place for the personal loan before the two accounts were merged and the demand was made by Claimant for the overdraft and therefore they are not estopped from asking for the full amount - £1116.

 

The Judge did agree with us that we had entered into a repayment arrangement with the Claimants collection house - Metropolitan but upon examination of the Statement of account exhibit for the Claimant, judged that the payments had not been made consistantly and therefore the payment arrangement had been broken by me. The Claimant also said that we had not made any payments since the beginning of litigation, which is true as since Restons have always refused any payments since issuing the Claim form.

We did try and explain that the Statement of Account only shows the date that Metropolitan actually processed the payments and apply them to the account and that I had actually made the payment prior to the requested date of the 28th of every month, but we had never submitted them as evidence and so he decided that the repayment plan had been broken. The Judge didn't dispute that we had tried to make payments and asked if we still had the repayment money, which we do.

So he ordered, that within 28 days we:

Pay Claimants solicitors the agreed monthly repayment plan arrears - 13 (months) x £40 = £520 plus we must continue to pay £40 pm (until full trial) to Solicitors as originally agreed in the installment arrangement.

We pay the Claimants solicitors the full balance of the Overdraft Facility of £1116.

Cost in the Case

 

We are going to contact HSBC on Monday to see if the PPI redress (£3208) that has been awarded to us by FOS a few months ago, can be set-off towards the £1116 and the balance to be credited against the approximate loan balance then outstanding of £14,700.

I am also going to write to Restons on Monday to request their details so we can make the monthly payments as ordered and to attempt to re-open lines of communication regarding amicable negotiations. (Unlikely to happen, but I live in hope)

 

I are truly grateful for all you help, advise and just general concern regarding this and I will be making a donation within a few days. Not as much as I would like to but something is better than nothing.

Kay

x

[AndyOrch]

Well done Kay you stopped Summary Judgment.

 

Await the Order now for Directions and we can sharpen up for round 2.

 

Did they try to claim their costs for the day? Did you request yours?

 

Delighted

 

Andy

[kayastley]

Hi Andy,

thank you. I was really surprised it went so well. The Judge did seem to sympathise more because we were litigate in person.

They did ask for costs but the Judge firmly stated "case costs" - they wont be happy with that!

I will scan the Summary of costs from them. I have been meaning to do it sooner but I've been working all weekend.

You'll never guess how much they wanted to claim....... £5300! I shouldn't be surprised really but even I was taken aback.

I get paid next Friday and so will be making my donation to CAG then, if that's OK, sorry it's not sooner.

I'll get the cost docs scanned up later so you can have a look.

Thank you Andy

x