Platform defending or are they?

[priestley1965]

Hello everyone:rolleyes: , a bit of guidance would be appreciated:

Filed via moneyclaim against platform for ERC, they did not respond so I won by default, or so I thought! I Issued judgement by moneyclaim then just received letter from Drydens solicitors saying they are going to defend and have filed an application under CPR 13.3:? They have stated that my original agreement with them indemnified them in respect of reasonable costs so they are defending and counterclaiming against me for their costs which to date are £600. They have sent me a copy of their defence which is around 10 pages long but basically is a copy of the original mortgage agreement and backup documents with all of the clauses in respect to early settlement.

Is this a ploy to scare me off or does it sound like they have a case?

any ideas anyone? The claim was for £4800ish inc interest & court fee!

[ellielou]

Hi

 

How long after did they submit their defence?

 

MCOL helpline told me that a judgement takes 48 hours to be actioned & the defendant can still submit thier defence in that time.

 

Ellielou

[priestley1965]

Hello Ellielou,

 

Judgement was issued via moneyclaim on 20th, their defence sent to me is dated 23rd. Not sure if this makes a difference?

 

Alan.....

[GraemeC]

Sounds like a scare tactic

 

The counterclaim for costs is total rubbish, goes against the Civil Procedure Rules and they cannot rely on a clause in a contract which is no longer in force.

 

Have a look at 'These guys dont get it , do they' thread and I think Sarounia may have encountered something similar

 

You should also inform the solicitor you will be making a formal complaint to the Law Society for intimidatory and disingenuous behaviour

[priestley1965]

Thanks for your tips,

 

I will check "these guys don't get" it thread

 

Any other ideas anyone?

[zootscoot]

Have a look at Jamorgan's she got a counter claim also:

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/27030-harsh-letter-recieved-form.html

[priestley1965]

Thanks Zootscoot,

 

Had a quick scan at Jamorgans thread, her letter etc was also from drydens and is almost identical to mine so I will use details from it...thanks.

 

Any comments regarding Ellilou's response above re dates etc?

 

Alan...

[priestley1965]

Only mee again!

 

Is anyone out there?

 

Don't tell me you are all watching X Factor.

 

Just wondered if anyone else new the judgement date rules quoted by Ellilou earlier in this thread.

 

Also does anyone know what CPR 13.3 is?

 

Alan.....

[alanfromderby]

13.3

 

(1)In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a)the defendant has a real prospect of successfully defending the claim; or

(b)it appears to the court that there is some other good reason why –

(i)the judgment should be set aside or varied; or

(ii)the defendant should be allowed to defend the claim.

 

(2)In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

[priestley1965]

Thanks Alan,

 

that's a great help, do you think that I need to now wait for the court to contact me or do I contact the court first or just respond to drydens with zoots letter? I'm a bit puzzled

 

Alan....

[alanfromderby]

I would wait and see what happens with the MCOL judgement, then decide what approach to take. If judgement is entered, then that puts the ball back in their court. However, if their defence and counter claim were filed in time you will then need to go on the offencive.

[priestley1965]

Thanks, Alan from derby

 

for anyone who is interested, the basic facts so far are:

 

Initial request for repayment 25/09/06

L.B.A. sent 09/10/06

Bogoff reply 17/10/06

MCOL 27/10/06

Deemed Served 01/11/06

No response!

MCOL judgement entered 20/11/06 in default!!

letter from Drydens with copy defense 23/11/06

 

 

Alan.....

[priestley1965]

Only mee,

 

Further progress in this case:

 

Drydens applied to the court to have the judgement set aside and to strike out the claim, without the need for a hearing.

 

I contested this and the court have now set a date for 19th Jan.

 

If I understand this correctly this is just a hearing for the defendant to apply to have the judgement set aside.

 

Has anyone any experience of these cases?, is the defendant likely to turn up? what is likely to happen? will I have to stand up and present my case? I am a bit confused, any help or advice would be much appreciated.

 

Thanks......Alan

[zootscoot]

Do you have any orders or directions from the court?

 

Have another look at Jamorgan's thread (link in a few posts above) she is currently going through the same process.

 

All the best

 

Zoot

[priestley1965]

Thanx for your response,

 

I have had a look at Jamorgans lengthy thread. I think my case is slightly different in that I obtained judgement by default and the court hearing at this stage is because drydens appliaed to have the judgement set aside.

 

The only details that I have is the court form N244a Notice of hearing of application.

 

All it says is: The hearing of the defendant's application to set aside judgement & to strike out claim and request summary judgement to be entered against claimant will take place at 10.20 on the 19 January 2007 at Sheffield County Court.

 

Attached to it are 2 x forms N244/1 application notice.

The first one states that drydens intend to apply for an order for the judgement to be set aside pursuant to cpr 13.3(1)(A) and further enforcement of the order to be stayed.

 

The second one states that drydens intend to apply for an order that the claim be struck out and/ or there be summary judgement against the claimant in accordance with CPR 24 and order for costs and interest against the claimant in favour of the defendant,

Because the claim holds no reasonable grounds etc etc etc

 

I do not have anything else other than this! do I need to be doing anything or do I just turn up at court on the 19th

 

Any advice please?

 

Thanks.....Alan

[zootscoot]

You state above that you contested the strike out and application to set aside. What did you do?

[zootscoot]

Also what did you put in your particulars of claim on MCOL?

[priestley1965]

Hi Zootscoot,

 

I actually sent a letter to the court and requested that correct procedure is followed and stated that Dyrdens should not be looking to cut corners by asking for the judgement to be set aside without a hearing. The court accepted my point and therefore issued a date for the hearing.

 

In my particulars of claim on MCOL i put a variation of different text which I had picked up from yours and others earlier threads as follows:

Particulars of Claim

The claimant held a joint mortgage account

No. XXXXXX from 16/08/02 until settlement

on 02/06/05.

On 02/06/05 an early redemption penalty

charge was added to the account prior to

settlement in respect of the claimant

terminating the contract before the agreed

period. This charge was a disproportionate

penalty and is therefore unenforceable at

common law as established in Dunlop

Pneumatic Tyre Co Ltd -v- New Garage and

Motor Co Ltd (1915) AC79. Further as a

disproportionate penalty it is invalid

under the unfair(contracts) terms act 1977

s4 and under the unfair terms in consumer

contracts regulations 1999 para 8 sch 2(1)e

The defendant has been unable to justify

their charge, therefore the claimant claims

from the defendant a sum equivalent to the

unlawful charge, being £4253.09.

The claimant further claims interest

pursuant to s69 of the county courts act

1984 at the rate of 8% pa, being the sum of

£478.13

 

Thanx,

 

Alan.............

[priestley1965]

Any thoughts anyone

 

Court hearing imminent!

 

Alan........................

[zootscoot]

With regards to the set aside that is upto them to argue and your only line of attack is that the defence has no prospect of success. However, its likely that they will be granted the set aside. They only have to show that they have an arguable case and the courts generally would rather the case went to trial than be decided by default.

 

With regards to the application to strike out, if the court has not asked you to submit any evidence or witness statements I would just have a look at the following link and use any relevant arguments from that.

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/52017-response-request-claim-struck.html

 

You also mention earlier about a counter claim so it might be worth looking at the defence to counter claim. If they win the set aside you will need to submit your defence to their counter claim within 14 days.

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/52019-defence-counterclaim-costs.html

 

Good luck!

 

Zoot

[priestley1965]

Thanx Zoot,

 

Bit scarey having to go to court!

 

Will keep you informed.

 

Alan...

[priestley1965]

Wish me Luck...... I'm in court tomorrow am.

[Les Gunn]

Good luck with it - don't let the buggers intimidate you - it's all part of the act!

 

[priestley1965]

Thanx,

Don't feel confident though after reading jamorgans thread!

 

Alan....

[Les Gunn]

Alan,

 

This was 1 case, with 1 judge and 1 crazy outsome.

 

Every dog has it's day and you have to look at it from our success rate...we were going to lose one sometime eh?

 

If jamorgan appeals, maybe things will be different...maybe not - but it's the chance you take. You have a good argument - don't let them bully you because they won the last one. It proves nothing!