NTTF Vs Restons/HFC

[NewToTheFight]

eventual response to CPR 31.14 request was the 3rd variation on an app with some terms. It is different in material ways to the 2 types of terms (& app forms) that were produced by the bank in response to the s77. The sols version has now been used with a WS at the setaside hearing.

They admitted not having the original in the ws. They said they did not have an original or copy

http://www.consumeractiongroup.co.uk/forum/legal-issues/253128-nttf-restons-hfc-8.html#post2979146

[diddydicky]

according to the other thread- they already have a judgement and you are applying to set it aside- is that right?

[rhodium78]

They are trying to state that they will go for SJ but, in my experience, if a defence was soooo pants that it wasn't worth fighting, I would go for a SO, not a SJ but that is just me.

 

So they have complied with your CPR request... and mentioned all the documents in the PoC.

 

I believe he got it set aside already dd.

[NewToTheFight]

Hi Diddy

The setaside hearing was a little while ago & succesful.

Then a fully particularised defence had to be submitted by the 29th

I have today received the letter I posted here

http://www.consumeractiongroup.co.uk/forum/legal-issues/253128-nttf-restons-hfc-12.html#post3012490

[diddydicky]

i wasnt aware of that- thought you were asking questions in relation to a poc

 

well if you were supposed to file a fully particularised defence by 29th and have not done so ANd you have had the docs from them

 

(you have admitted that you already have the DN - so insisting that they produce this when you already have it is a no no)

 

then you had better get your fully particularised defence produced pretty sharpish- send it to restons and the court and give some explanation and aplogogy to the court as to why it is late

 

i would say if you get it in in the nexy few says restons will be lucky to get it ruled offside

 

you might want to refer to my defence on my mbna thread as some of the issues will be very similar and you can adapt to your own use

 

now get a move on!

[diddydicky]

i wasnt aware that you had already been ordered to submit a fully particularised defence by 29th or that it had already been set aside for this purpose

 

i wasnt aware of that- thought you were asking questions in relation to a poc

 

well if you were supposed to file a fully particularised defence by 29th and have not done so ANd you have had the docs from them

 

(you have admitted that you already have the DN - so insisting that they produce this when you already have it is a no no)

 

then you had better get your fully particularised defence produced pretty sharpish- send it to restons and the court and give some explanation and aplogogy to the court as to why it is late

 

i would say if you get it in in the next few days restons will be lucky to get it ruled offside

 

you might want to refer to my defence on my mbna thread as some of the issues will be very similar and you can adapt to your own use

 

now get a move on!

[banker_rhymes_with]

Hello DDY!

 

There's a viper in the nest, so beware that everything is perhaps not quite as it seems.

 

Keep up the good work helping the OP.

 

Cheers,

BRW

[NewToTheFight]

Thanks Diddy

Do you mean throw all the ammunition in? quote case law etc?

If so why would the defence I was recommended to submit be so short & with so little justification?

Also which version of the app am I supposed to contest against?

[rhodium78]

Ok, seeing that they did comply with CPR, you will need to file a defence but don't fret, you would file an application under form N244 with a draft order. We can help with that. All is not lost, and don't worry, everything will work out. These things happen a lot when a defence needs to be amended to include a counter claim, etc.

 

I have attached a draft application and order. You will need to put the application on form n244, without a hearing I would suggest and also attach the order.

APPLICATION to amend defence.doc

[rhodium78]

Initially, no case law... look at the above, attachment.

[rhodium78]

Without taking this thread too much OT... brw, what do you mean?

[diddydicky]

Thanks Diddy

Do you mean throw all the ammunition in? quote case law etc?

If so why would the defence I was recommended to submit be so short & with so little justification?

Also which version of the app am I supposed to contest against?

 

 

i mean that if the court has ordered you to file a fully particularised defence by 29 June and you are already 5 days late- you had better get your skates on

 

your thread was started in March so by now you should have some idea of how to do it!

 

you just need to get on with it- if you dont know what you are supposed to do by now- i suspect you are in a bit of a spot

[rhodium78]

Don't be too harsh on him dd... you came in at roughly the same time as I did and to be fair to him, we both didn't read the whole thread before advising him to file the emb defence, so in part, we should be more lenient on him.

[NewToTheFight]

My thread did start in March, I was trying to get my head around this stuff, as I am a newbie. I posted all docs requested & tried to research. I reported back & asked for help & advice. I ended up with a default judgement, read the thread you will see exactly why that happened. I received more help & advice, which I acted upon. I got a setaside, again see what happened in the run up to that! Now I am worried by the comments posted on this thread with regard to my position, they appeared conflicting.

Yes Diddy I am guilty of being new.

I went to a solicitor (I can PM you the details if you wish, you would be very surprised) handed some important docs to the head of the company who had agreed to look them over & point me in the right direction. He still has not come back to me despite me having phoned at least 3 times.

 

We all have to learn, it just seems that what should have been a clear cut case & easy to defend at the begining is now proving very difficult

[rhodium78]

NTTF... it is fine, seriously... just file the N244 with the draft order. No need to get into a panic about it now as there is nothing to panic about. It is not proving to be difficult, you are learning and as you learn, you get better, that is standard. Once you get the order signed off, then you file your amended defence. It is just an application.

[NewToTheFight]

What form should the ammended defence take?

[rhodium78]

The usual... there will be 3 parts...

 

Defence:

 

Where you will rebut their PoC and state the fact that they don't have the agreement, that they have a defective DN, (and any set off you want to use).

 

Particulars of Claim:

 

You state in detail what is wrong with the DN, you state in detail the fact that they don't have an agreement, (and set off if needs be).

 

Then the statement of truth.

 

There are multiple examples around the forum which I am sure you can use as a template with all the case law in there, etc.

 

You can wait for the other caggers to pipe in as the paranoia is contagious.

 

Ummm... just thinking about the set off, I am still debating whether it is a good idea or not if you could use it considering you are arguing there is no enforceable agreement. I am still in two minds about that, and I am sure others will pipe in with their own opinions. I am indifferent at time of writing but will mention it here so it can be brought up if needs be.

[NewToTheFight]

In the cold light of day,I have prepared some thoughts on how to proceed:

 

 

1) What damage has been done / what needs doing to rectify it.

Not sure if the damage is significant

I am still embarressed as they do not have the original & have not stated which is the true copy

The 3 application versions must be a useful piece of defence

Is submitting he defence the only thing I have to do / should do?

 

2) Prepare a full defence, pronto

a) Using the POC as a starting point

(i) They claim the overdue balance under an contract and interest until the date of the claim then interest following judgement

CCA states the agreement must be regulated

There is no proof of an agreement however they will argue balance of probability. It is the legal status of said agreement that will be questioned

I have 3 versions of the precontract application (S59), they will argue that 1 of them is the agreement, which version should I refute and prepare my arguments against?

In order to have a cause of action there must be a valid agreement, correctly executed & signed (S68 I think) or the court cannot enforce (S127(3))

The app must be correctly headed

Must contain the prescribed terms

Must be capable of being turned from an app into an agreement

Must contain cancellation rights

Must be signed

a reconstruction must be a true copy, how is that possible if I have 3 versions

None of the versions show charges for late payments etc

Which copy is in reply to my S77? If they have not complied with my S77 correctly (by supplying 2 versions) they are not allowed to enforce

(ii) To demand sums not already due they must issue a compliant DN and allow the correct time to remedy

I believe the DN is deficient in that:

The amount stated is incorrect - full amount claimed

The amount may (most likely does) include charges there is no breakdown of how the figure was arrived at

There is insufficient time to rectify

The wording may not be exactly in the prescribed format, is this de minimus

 

(iii)They then terminate (must that be done seperately or is the phrase on the Dn 'we will terminate' enough?)

The issue of UR, how & when to make a claim

(iV)They have claimed post contract interest (which must be in the terms?) up until the claim, then are claiming interest until judgement(again post contract)

Should there be prior agreement (ie in the terms) to allow this

Is this allowed at all?

 

3) Submit said defence using the correct protocol

What is the correct protocol

Should I take the ammended defence to the court on Monday

Should I take the defence with an application

Should I take the application without the defence & wait for permission to submit

 

What is next? still waiting for the court order to arrive

 

Please note the references are only from the top of my head so may be wrong but I will check them whenI have time

 

Please comment and advise as appropriate

 

Many thanks

NTTF

[vjohn82]

It looks to me like this has been done in a slightly slapdash way without consideration to the court order. That said it can be overcome.

 

To what extent has the Claimant complied with your CPR requests? This, in my opinion, is crucial for you being able to submit an amended defence. You need to focus on the failings of the Claimant in this regard to have a chance.

 

That's my opinion only... others might have a different one of course. But if the set aside was conditional upon you submitting a fully particularised defence and you haven't done so then this could be looked upon by the Judge as a problem.

 

However, it does not prevent you from submitting an amended defence, apologising like hell to the Judge and playing the LIP card (possible extenuating circumstances like illness/stress etc). Play on the Claimant's stonewalling your efforts to procure information too (if that's what they have done).

[NewToTheFight]

The S77 response is 2 versions, does this count?

The CPR produced another version I don't have the docs with me at the minute

They failed to respond to N266 forms

I can't say the setaside was conditional on submitting, but I was told if I did not submit I would lose the right to defend.

Worst case scenario would I be able to adequately use the defence I have submitted & use disclosure to recover the situation? At the end of the day, how can I defend the indefensible? Maybe that is a better tactic.

 

What do you think of my musings, I thought it was perhaps the best way to start the defence construction, pad and support as required

[vjohn82]

The defence will work as an outright denial I suspect. My first defence for an eventually discontinued case changed when they issued a counterclaim... concise and to the point is better than nothing I suppose.

 

The real meat and bones to your defence exists within the witness statement so the situation could possibly be recovered.

 

I'll really have a good read now and then come back to you... give me a few mins.

[NewToTheFight]

Thanks VJ, I'll have a cuppa myself

[vjohn82]

Ok I've speed read everything and made copies of the documents you have submitted.

 

I can see why you filed that defence but I would have been more inclined to request an extension because it just confuses matters. That said, what is done is done. It's not irretrievable though so don't panic.

 

I just need a concise list of all the documents you have to hand that THEY have supplied to you.

[NewToTheFight]

bank or solicitors?

[pt2537]

ok

 

Rule no 1,

 

They dont need a copy of the actual agreement if and its a BIG if

 

The original has been lost, (which implies there was one of course) destroyed in fire such as GE Moneys records in the Iron Mountain storage fire.

 

Under those circumstances, they will not have it, therefore cannot disclose it to you. A touch of common sense must be applied here, you cannot go demanding something they dont have.

 

They can however, via their evidence, submit details as to the procedures used at the time the agreement was entered into and can reconstitute from their records but as HHJ Waksman and HHJ Langan both pointed out, the copy must be honest and accurate.

 

I would approach this from the point where, they plead a document therefore they are duty bound to disclose it(CPR 31.14) and if they fail within 7 days from receipt of a written request then you can apply for an order to disclose.

 

Of course if they tell you they do not have the contract then this is where it gets interesting, as to my mind, if the lender wishes to rely on reconstructed docs then they must tell you and i would even go as far to suggest that they should plead they do not hold the original but will provide a reconstituted copy

 

As to the defence vs witness statement case

 

Sadly, if its not pleaded and you try to introduce new issues via a witness statement then you are dead in the water

 

The rules are there to get you what you need, if you file a defence when you cant defend properly then you have the option to apply to amend. You can use part 18 to seek further information on the case on points you are unsure of, then from there you can formulate your defence and apply to amend

 

If its not in your defence its a new issue which the opponent will take as a hi jack

 

Also you need to overcome HFO v Patel too, so you must plead any breaches of the CCA which apply to the agreement in the Defence