Shortfall Court Summons - URGENT help needed please!

[citizenB]

Thanks slick.

 

Solicitor and myself attended court and argued case should not be reinstated, but judge said it was the fault of Hbos sols., and not Hbos themselves, who were to blame for discrepancies, so case will go ahead.

Judge ordered that Possession Order must be produced within 14 days or case will remain struck out.

 

Judge also said that I had a strong defence against them claiming back all the interest.

 

My sol said F&F will be a 'last resort', and IF they do come up with a P/O, will contact a barrister who deals solely with cases such as this for advice on the best way forward.

 

I have mentioned all the advice given to me on here to my Sol. which has been extremely helpful. Thanks guys, keep it coming.

 

 

Inafix, this is outside my knowledge so have alerted the site team for you.

[inafix]

Thanks CB.

I have sent back the acknowledgment of service defending all of the claim, but will need HELP with drafting a defence, please. Is this an abuse of process by them?

I did not send the letter posted by x20 in post #34, would it be any good to send it now, or will that not make any difference to this new claim?

Also, the main reason for my reluctance in going back to the solicitor is I seemed to be giving HER more advice than she was giving ME, from all the info you guys gave. THANKYOU.

HELP PLEASE!!!! This is making me ill having to go through all this again.

[ndcdavis]

Thanks CB.

I have sent back the acknowledgment of service defending all of the claim, but will need HELP with drafting a defence, please. Is this an abuse of process by them?

HELP PLEASE!!!! This is making me ill having to go through all this again.

 

This would appear to be an abuse of process.

 

It's questionnable whether you should file a defence. You may be better just to issue an application to strike out (use form N244).

 

As an aside, you probably should have ticked the box on the acknowledgment of service to say that you dispute jurisdiction, but it is too late now.

 

The order you seek is: The claim be struck out as an abuse of process under CPR 3.4(2)(b).

 

in the grounds section set the history out in detail:

 

(1) The claim should bs struck out as an abuse of process.

 

(2) On [date] the Claimant brought proceedings against me in respect of exactly the same matter under case number [xxxxxx].

 

(3) On [date] the Court ordered that unless the Claimant do file its allocation questionnaire by 3 December 2008 the claim be struck out.

 

(4) The Claimant failed to file its allocation questionnaire by 3 December 2008 and the case was struck out by the court.

 

(5) On or about [date] the Claimant applied for the claim to be reinstated.

 

(6) On [date] the Court ordered that

.

 

(7) The Claimant has failed to comply with that order and thus the action remains struck out.

 

(8) These proceedings are abusive. The claimant should not commence new proceedings. If it wishes to proceed, it should make an application to re-instate the struck-out proceedings and should provide an explanation the Court for its contumelious conduct.

 

(9) I also ask the Court to consider whether to make a civil restraint order under CPR3.4(6).

 

hope this helps

Nick.

[citizenB]

There you go inafix.. follow the instructions from Nick in post above.

[inafix]

Thankyou so much.

Oh, Nick I did actually tick the box to contest jurisdiction. I phoned my sol. just to let her know this had reared its ugly head again(at her request), and she advised me to do that. She also said I should file my defence as an abuse of process(free advice for now!)

Thanks, will download N244 and send it off and will keep you posted.

[inafix]

Called in to court office today.

Clerk said N244 Application will cost me £75.00!, but a draft defence will cost nothing.

Do you really think its worth me paying if it could still come back?

[inafix]

Please HELP guys! Does everyone feel N244 Application is the best way forward ?

[slick132]

If you can afford the £75 fee, the N244 Application would be my favoured option.

 

In addition to the points made by Nick to be included in an Application, you may wish to include CPR 38(7):-

 

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.

 

You should also seek your solicitors' costs and your court fees from the claimant.

 

If you can't afford the £75 fee, you should enter a defence instead.

[inafix]

Thanks Slick.

Will go with N244.

What do I need to put in boxes 4. to 9. please, and which box do I tick for 10. ?

Also, could I order claimant to pay costs for the £75.00?

[slick132]

I've flagged this up for further input for you.

 

[MARTIN3030]

reported post acknowledged please bear with us.

[MARTIN3030]

reading further

[citizenB]

This would appear to be an abuse of process.

 

It's questionnable whether you should file a defence. You may be better just to issue an application to strike out (use form N244).

 

As an aside, you probably should have ticked the box on the acknowledgment of service to say that you dispute jurisdiction, but it is too late now.

 

The order you seek is: The claim be struck out as an abuse of process under CPR 3.4(2)(b).

 

in the grounds section set the history out in detail:

 

(1) The claim should bs struck out as an abuse of process.

 

(2) On [date] the Claimant brought proceedings against me in respect of exactly the same matter under case number [xxxxxx].

 

(3) On [date] the Court ordered that unless the Claimant do file its allocation questionnaire by 3 December 2008 the claim be struck out.

 

(4) The Claimant failed to file its allocation questionnaire by 3 December 2008 and the case was struck out by the court.

 

(5) On or about [date] the Claimant applied for the claim to be reinstated.

 

(6) On [date] the Court ordered that

.

 

(7) The Claimant has failed to comply with that order and thus the action remains struck out.

 

(8) These proceedings are abusive. The claimant should not commence new proceedings. If it wishes to proceed, it should make an application to re-instate the struck-out proceedings and should provide an explanation the Court for its contumelious conduct.

 

(9) I also ask the Court to consider whether to make a civil restraint order under CPR3.4(6).

 

hope this helps

Nick.

 

Thanks Slick.

Will go with N244.

What do I need to put in boxes 4. to 9. please, and which box do I tick for 10. ?

Also, could I order claimant to pay costs for the £75.00?

 

Does ndc's post answer most of your question ?

 

Box 10 You need to decide if you are going to attach a witness statement.. A detailed and chronological order of what has happened to bring you to this decision.

 

or

 

in the box available under 10 you can just summarise why you are making the application.

 

Or

 

if it is too long, then you need to attach a page saying why.

 

Box 4. No doubt you will be attaching a draft order asking for the DJ to strike out the case for what ever reason.

 

Box 5. Do you want the application heard at a hearing or not ? Tick which ever box applies

 

Box 6. If at a hearing then the time will be approx 30 minutes

You will tick no, that the time estimate has not been agreed with all the parties.

 

Box 7. Leave this blank

 

Box 8. What level of Judge - type in "District/Circuit Judge"

 

Box 9. Who should be served with this application ? - You want this to be served on the opposition (whoever they are).

[inafix]

Thanks citizenb.

Sorry if I seem ignorant! Nicks advice is excellent, just wasn't sure where all the info should go and what boxes to tick.

Should the application be dealt with at a hearing or can I say without?

Does disputing jurisdiction mean it won't be dealt with by that court? which is what the court clerk told me??

[slick132]

You should dispute the jurisdiction to have the case heard at your local county court, if you want.

 

I would say "With a hearing" so you have a chance to speak up for yourself.

[inafix]

It IS already at my local court?

Does this mean I've done something wrong as this is the court i want?

[slick132]

If the case is being d/w at your local court already, then all is well.

 

[inafix]

Have just received a letter to attend a hearing at court on 9th March, which doesn't give me much time.

Do I need to appoint a solicitor, or do you think I could handle it myself?

What are the main points I need to address?

HELP please guys.

[slick132]

Hi Iaf,

 

Please confirm exactly what the court order says about the hearing.

 

[inafix]

TAKE NOTICE thet the Hearing will take place on

9 March 2010 at x:xx pm

at xx County Court

When you should attend

30 MINUTES has been alowed for the Hearing

 

Please note: This case may be released to another Judge, possibly at a different Court.

[citizenB]

Is this the hearing for your N244 appliction to strike out ?

[inafix]

I think it must be?

[slick132]

It's up to you whether you appoint a sol'r, but people attend such hearings as a Litigant in Person all the time.

 

If you ensure you are clear on what you seek to do in making the Application (Strike Out) and the reasons for doing so (set out in your appl'n already), you should be ok.

 

Get there in good time and do not be intimidated if the bank's legal rep wants to talk to you beforehand. If you start to feel bullied by legal speak, just say to the legal rep that you will wait to see what the judge has to say in the matter.

 

[inafix]

OK, will do thanks. Feeling nervous already. Will let you know the outcome.

[inafix]

URGENT...I'M LEAVING FOR COURT IN LESS 2 HOURS

HELP PLEASE ANYONE?

 

Have just now received a copy of witness statement from sols.

4 pages of jargon, but main points for their defence......

...the issues in the current proceedings have not been judicially determined as the substantive issues have not been heard by the court. The original proceedings wre struck out due to the procedural failings of instructing solicitor and therefore it cannot be said that the claimant is mis-using the court process by attempting to re-litigate that which has already been determined. To strike out the claim would deny the claimant its right to a fair trial of the issues which are the subject of the claim.

 

The instucting solicitors accept that they were at fault in the original proceedings and the claimant has a;ready been punished in the form of paying the defendants costs. To strike out the current proceedings would be to further punish the claimant for the actions of the instructing solicitors and as the issues in the claim have not been properly tried in any event, and the strike out of the current proceedings would entirely deny the claimant of its opportunity for the first time that which has not been determined by the court, namely issues which are properly the subject litigation against the defendant.

 

Instructing solicitor respectfully submits that the claimants claim has a real prospect of success at trial, and denies that they were in breach of care upon the sale of property.

 

There are no concerns in terms of litigation in either the original or the current proceedings. The defendants payments made following the sale of the property served to restart the limitation clock by virtue of section 29 limitation act 1980.

 

The sustantive issues in this matter have not been fully heard by the court, the defendant has suffered no abuse in the current proceedings being pursued, the current proceedings cannot be deemed an abuse of process. Instructing solicitors are extremely apologetic for the mistakes in the original proceedings, however respectfully submit that it would be grossly unjust to stike out the claimants claim for its actions in the original proceedings. It was not the intention to disrespect the court.

 

The defendant has not been vexed twice in the same matter as the claim was never judicially determined. Accordingly, having regard to the overriding objective to deal with cases fairly, the claimant humbly requests that the court dismisses the defendants application to strike out the claim.

 

What should my response be to the judge??