MyB Stayed even after form of judgement!

[bakingpowder]

Guys Im a little confused......I went through the whole process of claiming to the point of going to local court. I recieved a letter from the judge saying that he had taken the decision to strike out for abuse of process on the defendants part. We had 7 days to put in a stay. This form of judgement arrived the day before the first hearing for the major court case with the banks. I kept in touch with the court and rang them 2 weeks after this letter was first set. I was told that the defendants did not reply so therefore the deadline was not met for the plea for a stay. I was told to wait for a response from the judge and all will be fine. Yesterday I recieved a letter from the judge (dated 9th August!) saying that he had taken the decision along with the defendant to put a stay on the case untill hearing the outcome of the major case in February! arrrrrrrrrggghhhhhh! Can they do this? I thought a judgement had been made! it doesn't make sense! would it be worth my time pleaing for the judge to reverse his decision as things are a little late in the day and HSBC have already tried to make me an offer once so surely this is evidence of them being in the wrong and they are just using yet more delaying tactics!I have to reply to this letter within 7 days so some advice would be really appreciated. thanx

[freakyleaky]

Have a look at this thread for now.Hsbc. This has just happened to someone else. This is a new situation but you must apply for the removal of the stay.

[bakingpowder]

Thanks Freakyleaky,

 

Just read the link and read up on the guidance for stays. Going to apply for removal. Gotta go to work all day now but will be on the case tomorrow night.

 

Here is the letter from the judge

 

IN THE LINCOLN COUNTY COURT CASE NO:7OT02568

BETWEEN;

xxxxxxxxxxxxxxxxxxxxxxCLAIMANT -AND-

HSBC DEFENDANT

On the 9TH day of AUGUST 2007

Before District Judge.......... MAW........................... sitting at Lincoln County Court,

360, High Street, Lincoln. LN5 7PS.

Upon reading the file and upon it appearing that the issues in this case are to be considered by the Commercial Court in case number 2007 Folio 1196.

On the Court's own initiative IT IS ORDERED THAT

1. This case is stayed with immediate effect pending the final determination of

the case in the Commercial Court. Any listed hearings in this case are vacated

and will not take place.

2. Either party may apply to the court to lift the stay. Any application must be

served on the other party and be supported by evidence why the case should

proceed before the determination of the Commercial Court case.

3. Unless the Court has given directions in the meantime the Defendants must

apply on notice to the Court for directions not later than 3 months after the

determination of the Commercial Court case

4. This order having been made on the Court's own initiative, either party may

apply to vary or revoke it provided the application is made not later than 7

days after service of the Order.

5. Explanation. The very many cases about bank charges that are being brought

raise issues of principle that need to be decided by the High Court, in

particular whether bank charges that have been paid can be recovered because

the contract with the bank imposes an unlawful penalty, or because the terms

of the contract are unfair and infringe legislation. The Office of Fair Trading

and several banks are co-operating to have the major issues that arise in many

of the cases decided by the High Court. The Commercial Court decision

should be known by February 2008. It is appropriate for this case and many

other cases to await the decision of the Commercial Court.

 

 

Now was this letter served on the date of the letter? if so why have I just recieved it in the post now? will it be to late to apply for removal?

 

And unlike myself the courts dont work weekends! so I cant speak with them till monday! how convinient! Ill post up the form of judgement later aswell.

[bakingpowder]

General Form of Judgment or Order

To the Claimant's Solicitor

 

Carl Greenwood 17 Renfrew Close Lincoln Ln59au

 

In the LINCOLN County

Court

Claim Number

7QT02568

Claimant

(including ref.)

Carl Greenwood

Defendant

(including ref.)

Hsbc Bank DX7 12630 BIRMINGHAM

32

Date

20 July 2007

 

Before DISTRICT JUDGE TOOMBS sitting at Lincoln County Court, 360 High Street, Lincoln, LN5 7PS.

Upon the Courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it

IT IS ORDERED THAT

The Court, of its own motion, is considering striking out the defence in this action as an abuse of process.

The basis for this is the fact that the Defendant is settling all claims of this nature where Claimants are seeking the reimbursement of bank charges, with no claims proceeding to a contested hearing.

The Court considers the authority of Mullen -v- Hackney London Borough Council [1997] 2 A11ER 906 relevant.

If the Defendant objects to the proposed strike out, it is ordered to file, by no later than 8th August 2007, a schedule setting out all claims of this type in England and Wales which have proceeded to a final contested hearing, and the outcome of such hearings, together with a schedule of all such claims which is has compromised before the final hearing after proceedings have been issued.

Upon receipt of any such objections, the Court will consider listing the claim for an on notice hearing of the strike out issue.

In the absence of any such objections being filed in time, the defence herein will be struck out a judgement entered for the amount claimed by the Claimant, together with the appropriate costs claimable on the small claims track.

Dated 16 July 2007

[bakingpowder]

Hey Freakyleaky,

 

Have filled out the Application for removal and edited part c statement as required. I have also written a letter with regards to the two different judgements made from the two different judges. I would really appreciate it if you could just give it the once over for me, see if its ok. thanx

 

Dear Sir

Re: Claim No: *********** – Claimant: ************ – Defendant: HSBC Bank

I write following receipt of a General Form of Judgment or Order from District Judge Toombs on 20 July 2007 (copy enclosed), stating that the Court, of its own motion, is considering striking out the Defence in this action as an abuse of process.

Both the Defendant and I had the opportunity to object to the Order and make an application to have it set aside, varied or stayed within 7 days of receiving the Order, 20 July 2007. The Order also stated that if the Defendant did object within the stated time scale (20 to 27 July 2007) then they should file, no later than 8 August 2007 the evidence requested by District Judge Toombs in the Order.

To the best of my knowledge the Defendant did not object within the stated period of time. This was confirmed to me when I telephoned the Small Claims Court on Tuesday, 14 August 2007 and was informed that nothing had been received from HSBC Bank and to expect a letter from the Court in the next few days.

On Friday, 24 August 2007, I received an Order of Stay (copy enclosed) from District Judge Maw, in which part 4 states “This order having been made on the Court’s own initiative, either party may apply to vary or revoke it provided the application is made not later than 7 days after service of the Order. I am very confused as to what date I should be working to as the Order is dated 9 August 2007, however, it was not posted to me until 22 August 2007 (see copy envelope enclosed).

I am also confused as it appears that one Judge (District Judge Toombs) made a judgment on 20 July with an application closure date for objections within 7 days of this date and a second Judge (District Judge Maw) made a different judgment on 9 August 2007. The confusion is compounded by the fact that I was informed by the Small Claims Court, during my telephone call of 14 August 2007, that no instruction/correspondence had been received from HSBC Bank.

I therefore feel I have no choice but to apply for an Order for removal of Stay. Please find enclosed all relevant documents/evidence to support my case.

Yours Faithfully

I hope that ok ish!

[Audreygreeneyes]

baking given me an hour and I will ahve soem more for you to add thatmay well beof help...............

[hopeless1234]

Hi

 

A similar thing has happened to me.

 

I obtained Judgment against HSBC (in default) on 13 August. I contacted the bank and DG who treated with complete contempt by failing to answer my letters of correspondence requesting payment. I then obtained a warrant on the 22 August. DG then sent a fax to the court asking that they judgment be set aside and the case be stayed, both of which were done without a hearing.

 

DG's memo to the court (no proper application was filed)stated that the judgment was only granted due to a computer error which meant that their acknowledgement of service had not been recognised. Total crap and even if the acknowledgement of service had indeed not been recognised the time limit for the defence was still 12 August being 28 days from claim.

 

IMHO what has happened here is a breach of Civil Practice Rules and I have written to the court and DG Solicitors. To top it all, my claim is a business charge claim which in any event may not be covered by the OFT case in any event.

 

Thoughts welcome, plus my sympathy for your position and everyone else who is being treated this way.

[lateralus]

again, this is dg playing fast and loose with the oft waiver - i don't believe it was meant to be used in this way -

the discussion thread is another place to see how others are dealing with this issue -

i agree with audreygreeneyes - who says this blatant attempt to manipulate the courts should be reported to the master of the rolls and also to the oft.

 

even before the oft announcement the courts were very lenient with deadlines towards the defendants - now it continues, i find it very, very frustrating - think i'll go bang my head against the wall til i feel better!

[johnnymitch]

Aw, c'mon Lat, come and have a cyber cuddle......... to cheer you up

 

 

Anyway, what are you doing out of the Bath/bed at this time of night, or did you get your waterproof laptop at last?

[lateralus]

awww, thanx for the cuddle, john, i needed that!

i'm feeling better now - just checking a couple of threads - then off to suds-land..... oh how i wish i had that waterproof laptop!

[johnnymitch]

You're welcome Lat - you've earned it, you're getting busier than ever.

 

 

Night -night!

[lateralus]

i'm leaving for the tub this very second!

hasta manana!