Blemain Finance tried in 2012 to repo house,now trying again***Resolved by Consent Order***

[Frazzled2]

Hi everyone

 

I just wanted a quick bit of advice.

 

 

Blemain Finance issued a claim in 2012 and

 

 

when the matter went to court and the judge was appalled that they were trying to gain possession of a property

for such a small amount (1700) and

 

 

refused to grant them possession.

 

 

Instead the judge asked that I file a fully pleaded defence on or and that the claimant file and serve their reply.

 

I filed the defence and

 

 

in March 2013 I received a letter from the claimant's solicitors saying that they have been instructed to vacate the court proceedings.

 

 

I called the court to find out why and

 

 

they said because an agreement had been reached.

 

 

No agreement between us has ever been reached.

 

 

I have had a solicitor look over the loan agreement and

she said that according to the terms therein,

that I should pay £399.00 which I offered to them and they refused.

 

I also received a letter from the court saying:

 

"I can confirm that the court received a letter from the claimant requesting that they wish to withdraw all proceedings.

This means that the case is now closed.

Please note that you will have to seek legal advice if you are going to issue proceedings against the claimant".

 

I received a further claim form for possession of property from Blemain Finance and I have to attend court soon.

I now have to respond to this claim and wanted to know whether I could use the fact that they previously withdrew their case as part of my defence.

 

I know from a previous post that Civil Procedure Rules 38.7 might come into effect.

Could I possibly use this rule to help me in my defence also?

 

I would really appreciate any advice you could give me.

[ims21]

Hi Frazzled

 

Welcome to CAG.

 

Bear with us and the legally minded guys will be along to help as soon as they are available.

[AndyOrch]

Absolutely...providing the claim is basically the same and you submitted a defence previously

 

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.

 

Andy

[Frazzled2]

So do I put this in my defence form or could I apply for a strike out under CPR 3.4 (2) (b) I.e. abuse of court process?

[Frazzled2]

I just contacted the court to ask whether the claimant needed to obtain permission to bring a new claim. They told me that they didn't and that they could re-list the case at any time. The provisions of CPR 38.7 seem quite clear to me, so why doesn't it seem to apply to my case? Any thoughts?

[dx100uk]

when all this is over don't forget to reclaim all the PENALTY and arrears fees.

 

 

dx

[AndyOrch]

I just contacted the court to ask whether the claimant needed to obtain permission to bring a new claim. They told me that they didn't and that they could re-list the case at any time. The provisions of CPR 38.7 seem quite clear to me, so why doesn't it seem to apply to my case? Any thoughts?

 

It does apply the court staff are not legally trained nor qualified to advise...ask for the DJ next time:madgrin:

[Gemma.]

It does apply the court staff are not legally trained nor qualified to advise...ask for the DJ next time:madgrin:

 

 

Hi by DJ do you mean District Judge? Is it possible to ring and ask to speak to them?

[ims21]

Hi by DJ do you mean District Judge? Is it possible to ring and ask to speak to them?

 

Erm no....it was a joke.

 

 

It means that people are not to rely on things told to them by court clerks/staff and the like for the reasons given.

[panther12]

Whenever you ring the court (especially Northampton ccbc)

 

 

once you do finally get through it's a lottery as to the calibre of person you get to speak to.

 

 

Some are knowledgeable and some are not, it's pot luck which you get.

 

 

Once a case is eventually transferred out of ccbc to local court

 

 

I find the local court staff are more knowledgeable and helpful.

[AndyOrch]

I just contacted the court to ask whether the claimant needed to obtain permission to bring a new claim. They told me that they didn't and that they could re-list the case at any time. The provisions of CPR 38.7 seem quite clear to me, so why doesn't it seem to apply to my case? Any thoughts?

 

 

Only claims that have been adjourned or hearings vacated can be re listed...not ones that have been withdraw/discontinued/closed.

 

Regards

 

Andy

[Frazzled2]

So is there a legal difference between a case that 'withdrawn/closed' and a case that is 'discontinued'? CPR 38.7 refers to discontinued rather than closed/withdrawn.

[AndyOrch]

One and the same...frazzled just go with my first post and stop over thinking and asking all and sundry and getting conflicting advice.

 

Start your defence.

 

Regards

 

Andy

[Frazzled2]

Yes, sir.

[Frazzled2]

Just a quick update

- the case went to court last week and

 

 

the duty solicitor appointed for tried to argue (not very well) that the Blemain should not have been able to bring the case again

and that it was an abuse of process.

 

 

The solicitor for Blemain said that they vacated the previous hearing in order for negotiations to continue

- there were no negotiations just costs piling on and the judge did seem a bit confused about the vacating issue.

 

 

I am now back to where I started in that I now have to serve a fully pleaded defence again.

 

 

This has to be done in 2 weeks.

 

 

Can I use abuse of process in my defence?

 

 

The CPR 38.7 rules doesn't seem to have helped.

[AndyOrch]

Unless you/court actually received a Notice of Discontinuance then the court will accept that it was not discontinued only vacated...therefore CPR38.7 is not applicable nor a defence.

[Gemma.]

I think that because you are a Litigant in person and not legally trained you might be best to start right now and use everything you can.

 

 

Be clear and answer every point of their case.

 

 

I find that often things begin to form a much clearer picture once a draft is written.

 

 

It can then be re-written and honed and improved.

Edited November 10, 2014 by Andyorch
Reference removed.

[SabreSheep]

Side note

Have any charges been applied on this agreement as in late payment fees, etc Anythign reclaimable that can be used to reduce the debt?

[mercyblue]

What is the sum they are now claiming? Is it not possible they vacated merely to increase the amount (considering your 1st post). If that is the case I would think that would be possible to argue is an abuse of process, especially as they have made no attempt at negotiation despite their solicitors claim.

[jackreacher]

What is the sum they are now claiming? Is it not possible they vacated merely to increase the amount (considering your 1st post). If that is the case I would think that would be possible to argue is an abuse of process, especially as they have made no attempt at negotiation despite their solicitors claim.

 

I agree with mercyblue.. there is a good argument about the amount should not have increased as they withdrew or vacated.

 

Are you sure there was no discontinuance letter?

[Frazzled2]

The original sum was £1700. In the 18 months since they withdrew the first claim, it has risen to just over £3000.

 

I don't have a discontinuance letter, just the one from their solicitors saying:

 

"We write to confirm that we have been instructed to vacate the court proceedings".

 

I then wrote to them to say that no settlement had been reached and I received a further letter saying:

 

"We have not requested that the court vacate the matter as the matter has been settled. Our client has requested this in order to allow further negotiations without the need for court proceedings."

[AndyOrch]

They can only claim what is on the claim form...they cant add to it unless its sec69 interest.They cant issue a second claim on the same matter as the first was never discontinued.

[Frazzled2]

I filed the defence with the court by emailing and also taking 3 copies there. Blemain's response to the defence is due in a couple of days and their solicitors have just called me to say they haven't received it and that it is my obligation to send it to them. From the Possession Claim Online website, I know the court sent a copy to them on 26 November. The solicitors want me to email them a copy. Should I?

[AndyOrch]

Dont see why not Frazz...even though as you state they have already had a copy.

 

Andy

[Frazzled2]

Having now received my defence,

 

 

Blemain have decided to settle and have said that I now do not owe them anything.

 

 

They also agreed to remove the charge from my property.

 

 

They drafted a consent order for me to sign so they could send it to the court but it does not state anything other than

(a) the court date be vacated and

(b) that there should be no order for costs.

 

 

It doesn't say anything about them writing off the debt.

 

 

I don't trust that they will do what they say.

 

 

They insisted that I had to sign it today

 

 

but I wanted to get some advice first.

 

 

Should I sign the consent order as it stands?