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HP : Fortis Lease uk Can I request for their claim to be struck out as abuse of Court Process?

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Dear all

 

I entered into HP agreement for a car back in Sep 2006

Due to family breakdown and missing one payment after two years the creditors did not want to help and tried to recover vehicle without court order and then they obtained. Court order for recovery in early 2009.

I could not attend hearing at that time . Vehicle sold by them and now they are trying to pursue a shortfall of some 5000 .

 

They issued a claim suddenly on June this year and a summary order was made . I then successfully managed to set aside the judgement . Court allowed 28 days for mediation and if that fail Court to send allocation questionnaire ..

 

No mediation was attempted.. Creditor solicitors filed another claim with same facts asking for SJ

And saying no need for trials.

 

Can I request for their claim to be struck out as abuse of Court Process?

If yes how to complete form and a sample statement ?

 

Also they have written debt off in their records and marked it as satisfied .. Now they are trying is a error !

 

In addition I feel there has been unfair relationship and the terms of the agreement unfair ? How can I request the Court

To declare it unfair? there is a clear error in the amount financed and also there is potentially an error in the interest calculated.... The cah price was 21113 and amount of credit was 19113...The then sent a statement which starts with a total of some 24000?

 

Note : I bought the car from evolution finance and I only found about Fortis Lease few month later.

 

Do I have to make an application or just file a defence...Can I have a sample form completed and a sample witmess statement.

Thanks

Edited by hobba

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Hello there.

 

You've posted in the forum for questions and suggestions about CAG itself. From what you're saying, I wonder if the Legal forum would be better.

 

My best, HB


Illegitimi non carborundum

 

 

 

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could you please transfer my post to the legal forum

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Thread moved.


 
 

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Hi Hobba

 

You cant file a claim for Summary Judgment...that is requested by way of an application during the claim process.If the initial claim was set a side what happened to that claim?

 

Regards

 

Andy


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Andy

 

First claim judgement set aside and the Court ordered that it send allocation questionaiire after 28 days to allow for mediation...Then they just filed another claim with the same facts.. Court did not send AQ to date....I believe this to be an abuse of court process as they made another claim with same facts...

 

How can I go about this? and the issue of unfairness?

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You need to do a little investigating here ...find out if the initial claim is still stayed.If so then you need to make application N244 to strike out the second as an abuse of process.If its not stayed and has been withdrawn then you would need to defend the new claim.

You can not refer to Res Judicata because the matter has not been adjudged simply stayed or withdrawn (whichever you discover).

 

Regards

 

Andy


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Hi,

 

Are you sure it is a separate claim? Do you have two claim numbers on the Court forms?

  • Haha 1

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If the first claim was actually completed and judgment made then no they cant make another (same) claim, that would be abuse and you could follow the SJ route.

 

BUT it appear first claim was only stayed, which would suggest that second claim is in fact the first one, IF they have made a cock up and the new claim is the same as the first then perhaps there is some hope of getting it struck out but then perhaps the first claim would be 'live', either way it appears you would have to properally defend against one.

 

Did you claim costs when you won SJ ?, these are normally pre-allocation so small track costs dont apply, you could ask for LiP £18 ph hour costs upto perhaps £300-£400. Ive done this in the past.

 

Andy

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Andy

 

The Court Order when the judgement was set aside state

 

" The Judgement against .............. dated 20 August be hereby set aside.

 

The claim be stayed for 28 days to enable the parties to negotiate.

 

In the event that the claim is not settled, the Court will send out Allocation Questionnaires after 28 days from the date of the order.

 

Cost in case "

 

Date Order made 26 Sep 2012.

 

The Claimant solicitors then filed another claim for the same facts they have already tried in reply to my deference and on them trying to oppose my application to set judgement aside and simply asking for the same facts again in a new claim form N244.

 

The second claim has the same claim number but issued on 25.10.2012.

 

I believe the first claim has not been withdrawn and I have no notification of such an action from the Court or other party.

 

Please note that I will need urgent advise in completing form N244 and in making a witness statement in suooprt.

There is also the issue of Unfairness in the agreement which I need to address and request for it to be declared as unfair.

 

There is hearing listed for 15 January .

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I have not claimed for cost yet but will do now...I will need help or sample witness statement which would include support for struck out their application...amended defense....request to declare agreement unfairas well as cost and any other remedy to be assessed by the Court. but will wait your advise

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Ok if there is only one claim number then there is only one claim.The second N1 should not have been reserved but the AQs need to be completed by the required date.The claimant has made application (N244) for Summary Judgment presumably on the basis that your defence has no merit.

You must submit a WS in response and objection for the reasons you state within your first post.... not less than 7 days before that application hearing date.

 

Have you submitted your AQ?

 

You cant claim costs you are the defendant at this stage.You may be awarded costs (for the day) if you successfully defend their SJ application

 

Regards

 

Andy

  • Haha 1

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Ok if there is only one claim number then there is only one claim.The second N1 should not have been reserved but the AQs need to be completed by the required date.The claimant has made application (N244) for Summary Judgment presumably on the basis that your defence has no merit.

You must submit a WS in response and objection for the reasons you state within your first post.... not less than 7 days before that application hearing date.

 

Have you submitted your AQ?

 

You cant claim costs you are the defendant at this stage.You may be awarded costs (for the day) if you successfully defend their SJ application

 

Regards

 

Andy

 

Hi Andy

 

Spot on ..yes they are saying I have no defence with merits.

 

Could you please help me with a sample or draft statement

to make the points clear with points of law

 

I have not submitted AQ yet as the Court did not send one as yet ..but will complete one soon.

 

Do I request for second form N244 to be struck off for potential misuse of Court process

 

Please also can you help me in drafting of WS and AQ and unfair agreement argument?

 

What orders to ask for?

 

What would be a good reply to their assertion that the defence has no merit or fanciful when the agreement can be unfair?

 

Thanks

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Yes not a problem but just clarify a few further details first... if the Order dated 26th Sept 2012 stipulated "In the event that the claim is not settled, the Court will send out Allocation Questionnaires after 28 days from the date of the order." What happened to the AQ,s?

If they reissued the claim same number 25th Oct 2012 was this a blue summons N1 with Northampton's stamp on? or was it one of their photocopy jobbies?

 

This is the bit concerning me " simply asking for the same facts again in a new claim form N244. " you don't issue a claim on a N244 but simply make application for example SJ in their case?


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It doesn't seem like the Claimant has reissued or abused the Court process at all.

 

If I am reading right you had a CCJ set aside and then filed a Defence. The Claimant has not made an application on form N244 to enter judgment again as your Defence has no merit.

 

Am I right?

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It doesn't seem like the Claimant has reissued or abused the Court process at all.

 

If I am reading right you had a CCJ set aside and then filed a Defence. The Claimant has not made an application on form N244 to enter judgment again as your Defence has no merit.

 

Am I right?

 

No that is incorrect..

The claimant as described on my first post has ROG order early 2009 and sold vehicle ...ECt

 

On June 2012 I discovered they issued Form

N244 to start proceedings of money money claim for short fall. Both claimant and court were sending to old address

. This was done in Willesden County Court.

 

The Proceedings were then transferred to Central

London County Court and I filed my defence against this first set on time .

 

The reason for setting Judgement aside was discretionary grounds for some other good reasons and the defence was not an issue. The claimant on their objection

to my application already thought my defence is without merit

But I was successful in setting Judgement aside.

 

The Court did not send AQ.

The second N244 just repeats the same facts which failed

already . I believe this is abuse of Court process as they have already failed on those facts as above and instead of chasing AQ from Court they issued yet another N245 with same facts and asking for SJ. This is not just .

 

I will await your advise on this and on drafting as above.

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The only N1 was for recovery of goods .but they had liberty on the ROG to reinstate money claim which is I think unusual..

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Hobba. I am confused. Please can you let me know this:

 

Is the claim they issued in June this year, and the subject of your first post, a resurrection of the judgment for the money that was made in the original claim for possession? (Presumably that claim was in 2006).

 

Or is the June claim a new one? If so, on what grounds was is set aside.

 

If it is a new one then you may have grounds for abuse of process, since a judgment has already been made on the money (in the original possession claim). See this post:

http://www.consumeractiongroup.co.uk/forum/showthread.php?169002-Mortgage-Shortfall-important-new-decision&highlight

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Hobba. I am confused. Please can you let me know this:

 

Is the claim they issued in June this year, and the subject of your first post, a resurrection of the judgment for the money that was made in the original claim for possession? (Presumably that claim was in 2006).

 

Or is the June claim a new one? If so, on what grounds was is set aside.

 

If it is a new one then you may have grounds for abuse of process, since a judgment has already been made on the money (in the original possession claim). See this post:

http://www.consumeractiongroup.co.uk/forum/showthread.php?169002-Mortgage-Shortfall-important-new-decision&highlight

 

The original claim was for ROG and made in early Feb 2009 and all that was required was to return goods and no other action .

 

The Claim made in June 2012 was made through form N244

and was to deal with shortfall and they say yo change original claim to money claim .

 

Thanks

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Also what was the need to issue new proceedings with same facts ?

 

Guys I need help with grounds and drafting of what is needed . Hearing on 15 of Jan.

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From what you say, I don't think they have issued new proceedings. I think they are still working with the original possession claim.

 

My mortgage possession judgment included judgment for the monies, at liberty to restore. I understand that it is quite normal for mortgage possession judgments.

 

If this is all the same (2009) claim, I think you have grounds for requiring them to provide a good reason to attempt to get the money judgment restored given the amount of time that has passed.

 

To enable the experts here to give you precise and accurate advice it would help a lot if you could post up the original (2009) judgment and subsequent claims. Also a copy of your defence. If you are OK with this you will need to remove all identifying info and round sums up.

Edited by Bandit127

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From what you say, I don't think they have issued new proceedings. I think they are still working with the original possession claim.

 

My mortgage possession judgment included judgment for the monies, at liberty to restore. I understand that it is quite normal for mortgage possession judgments.

 

If this is all the same (2009) claim, I think you have grounds for requiring them to provide a good reason to attempt to get the money judgment restored given the amount of time that has passed.

 

To enable the experts here to give you precise and accurate advice it would help a lot if you could post up the original (2009) judgment and subsequent claims. Also a copy of your defence. If you are OK with this you will need to remove all identifying info and round sums up.

 

Dear all

 

I will post up order of 2009 , the two forms N244 and copy of my defence for June 2012 as requested later in the day.

 

But why would they be allowed to file for new set of proceedings ?

Can someone help with drafting WS to include amended defence , deal with the issue of misuse ,

Unfair agreement and relationship in the meantime as per my posts and replies .

Please refer to my original post

 

Regards

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Dear all

 

I will post up order of 2009 , the two forms N244 and copy of my defence for June 2012 as requested later in the day.

 

But why would they be allowed to file for new set of proceedings ?

Can someone help with drafting WS to include amended defence , deal with the issue of misuse ,

Unfair agreement and relationship in the meantime as per my posts and replies .

Please refer to my original post

 

Regards

 

Can you clarify why would they made a second application when the first application purpose was to restore ..

 

I think this second application is an abuse of court process!

 

Can you please help me with

 

1WS

 

2 AQ

 

3 amended defence

 

4 ground for abuse of process

 

5. Unfair agreement relation and timing as well

 

Can these be in the WS

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They haven't filed a new set of proceedings ...same claim number same claim.We cant really offer advice until you post up all the relevant paperwork so we can decipher what's going on.

 

Andy


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