Cheshirelad v SPML ( set aside hearing 6th Nov )

[Cheshirelad]

Re: Cheshirelad v Mortgages PlC

Big development this morning..............Letter from a firm of solicitors informing me they are now instructed by the defendant to handle the case.

They enclosed a completed AQ asking for the case to to fast tracked as it raises complex questions of law and thus unsuitable for small claims.

In the other information they state my claim is poorly and inadequately pleaded and the defendant is considering make application to have my claim struck out.

They say they will be making application to amend their defence shortly.

they then apologise for late filing of the AQ as the matter had only just come to light at the defendants offices and they had only just been instructed.

Advice please

regards
Cheshirelad

[righty]

Re: Cheshirelad v SPML

So what happened to the TO?
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This development is highly prejudicial & you need to complain to the court - I also suggest you need to seek legal representation - is Tom available?

[scoobydoo]

Re: Cheshirelad v SPML

As this is sort of merged with your SPML thread it may be a bit confusing - can you give more background to this claim is it a second mortgage? Just for any other readers can you give us a summary at this point to make things clearer. Is the SPML case settled now?

[Cheshirelad]

Re: Cheshirelad v SPML

SPML - Update

The court wouldn't accept the draft order, they said it had to be a Tomlin order, which Rightly has kindly highlighted and ask the question why would it need to be?

And I confess I don't know, but I read though the wording carefully on the order and it didn't appear to be much different the the orginal order. So I agreed and sent back. It is now on its way back to court in order to be accepted then I'll get paid in a couple of weeks from now probably.

I will then commence my next compane against them for ERC.


Mortgages Plc - Update

Quick summary - Iwrote to the court requesting summary judgement on the grounds the defence they submitted was a nonsense- they said they couldn't trace my account with them, it was unsign or dated and on their complement slip. with my request I sent the court copy correspondence between us to support my request.
I rang the court yesterday and was told the judge had ordered that they must submited a proper defend in 14 day or I could enter judgement.

Then this morning in the post a letter from a firm of solicitors informing me they are now instructed by the defendant to handle the case.

They enclosed a completed AQ asking for the case to to fast tracked as it raises complex questions of law and thus unsuitable for small claims.

In the other information they state my claim is poorly and inadequately pleaded and the defendant is considering make application to have my claim struck out.

They say they will be making application to amend their defence shortly.

they then apologise for late filing of the AQ as the matter had only just come to light at the defendants offices and they had only just been instructed.

I haven't sent my AQ yet as I was waiting for the result of my request and bearing in mine there is going to be a different defence know I think I should wait.

But I need some help with this now please

regards
Cheshirelad

[Cheshirelad]

Re: Mortgages Plc - Update

Update:

The court would not give me a summary judgement but made an order giving them till 31st July to submit a proper defence.

I received a letter from their solicitors with a copy of a defence they were going to submit. Which basically said my claim was poorly pleaded and they we're embarassed to have to defend it. They said they had no real details of my claim and would be seeking to have the claim struck out.

Well the court never received this and no defence has been file, so yesterday I got my judgement by default for £2500 (not sure if this is correct? as an order had already been made by the judge which they failed to comply with)

I have issued a warrant of execution, so baliffs are going in A.S.A.P NO MERCY they never showed me any!

Wish I was a fly on the wall

Of course they could go for set aside just have to wait and see

Cheshirelad

[scoobydoo]

Re: Cheshirelad v SPML

Well done so far - its either a case of they were bluffing to the end and realised this could be a difficult case to defend and were waiting for you to blink first - technically they can say at the moment ( like bank charges) they have not actually lost the case as it has not been heard.

Or they are just very late with the paper work .

Keep in touch and let us know what happens. How long did they have to pay the £2500?

[TUTTSI]

Re: Cheshirelad v SPML

Good luck with this CL, you deserve to win.

The trouble is they would have a hard time convincing a Judge now the reason why they did not file their papers by 31/7/09, they have had ample to time to do so.

Do you know when the bailiffs are going in?

Tuttsi

[Cheshirelad]

Re: Cheshirelad v SPML

As expected they have maded an application to set aside, the case has been listed for 6th November, 30 minutes.

they claim they had submitted a defence and the court has lost it!

They say they faxed it to the court on 28th July (cut off 31st) quoting the time they faxed it.

So will have to see what happens on the day

Cheshirelad

[scoobydoo]

Re: Cheshirelad v SPML

I dont expect the court will be happy about that and I am sure they will know that the bank could send a fax confirmation as proof ( if they had one!)

anyway if it is what you saw it was not really a defence was it? More like a critisism of your case without a defending argument. Not quite the same thing.

[Cheshirelad]

Re: Cheshirelad v SPML

I dont expect the court will be happy about that and I am sure they will know that the bank could send a fax confirmation as proof ( if they had one!)

anyway if it is what you saw it was not really a defence was it? More like a critisism of your case without a defending argument. Not quite the same thing.

I was going ask a question about this faxing of documents to court and proof, that the senders machine has sent it, I have a little knowledge of how fax machines work and just because there is a log/report of transmissions it's no garanttee it is received at the other end. Surely this should not be acceptable in a court?

Its all very well the defendant saying they sent a defence at a certain time on a certain date.

My claim has all be submited correctly and I have personally delivered items to the court and obtained the nessasary court stamp.

Here we have a PLc mortgage company who submit their 1st defence unsigned on a compliment slip and their appointed solicitors on the last day (under a court order ) for filing a further defence with only hours to spare say they have file a defence by fax which the court hasen't received

I better if it was the other way round I wouldn't stand a chance!

[scoobydoo]

Re: Cheshirelad v SPML

On our machine we can run a list of proof of faxing by date - If it is an invalid or busy number the fax will just not go through and it will produce a report saying that it had failed. Not sure how far records would go back though as we get ours automatically printed and attach them to important documents in case of query.

I think this is more of a case of the courts allowing the defendant all the time they need to complete their defence.

Is this defence the same one that you have recieved - was it dated end of July?

Or is this a new defence?

[Cheshirelad]

Re: Cheshirelad v SPML

On our machine we can run a list of proof of faxing by date - If it is an invalid or busy number the fax will just not go through and it will produce a report saying that it had failed. Not sure how far records would go back though as we get ours automatically printed and attach them to important documents in case of query.

I think this is more of a case of the courts allowing the defendant all the time they need to complete their defence.

Is this defence the same one that you have recieved - was it dated end of July?

Or is this a new defence?

According to:
PRACTICE DIRECTION - COURT DOCUMENTS


PRACTICE DIRECTION - COURT DOCUMENTS - Ministry of Justice

section 5.3 states its the courts machine that has to receive the documents not the senders machine saying has been sent

I 'm starting to get my teeth into the application to set aside my judgement, they look like they are trying several arguments

1. I have filed my claim incorrectly saying my Mortgage was with a different company ( Mortgages 2 Ltd) yet all my correspondance proir to make my claim is with Mortgages PLC (they provided my SAR)

2. they are trying to align my claim with Bank charges and therefore should be on hold pending the outcome of the High Court ruling

3. My claim is poorly pleaded and do'es not demonstrate that the charges were unfair

The hearing is not till 6th November but I feel I could do with an experienced opinion or some guideance

Cheshirelad

[scoobydoo]

Re: Cheshirelad v SPML

bumping your question up for some help
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As I said before i Have only seen cases where the Fos have ordered refunds- but found this which indicates OFT have already ruled on mortgage arrears charges?



Yet lenders continue to levy 'default' charges indefinitely while homeowners are in mortgage arrears. These charges are similar to bank or credit card default charges - which the Office of Fair Trading (OFT) has concluded are legally unfair in terms of the Unfair Terms in Consumer Contract Regulations. In other words, a charge will not be fair if it exceeds the lenders actual administrative costs.

The legality of default charges has yet to be ruled on by a senior UK court but these will not be enforced if they are found to be 'penalty' or 'unfair' charges. The law is clear on that.

[Cheshirelad]

Re: Cheshirelad v SPML

thanks for the pm Scoob

I rang the court the other day and as far as the back office is concerned the defendants, defence was not filed in time therefore they did not comply with the court order that was already in place.

What I find annoying is that in their solicitors application to set aside the Judgement they are effectivtly presenting their defence or certainly taking the opportunity to chip away at my claim

could do with some experienced advice on these matters if any one can help please

Cheshirelad

[TUTTSI]

Re: Cheshirelad v SPML

Gosh these PLC companies can really tie you up in knots, I have a claim against Mortgages PLC for mortgage charges, which I intend doing through the FOS when I can get round to finalising this.

I know what you mean about if it were us were late it would be curtains for us and they would win and no argument, but the banks etc seem to be able to play the system to suit them and they are good at it.

I will keep my fingers crossed for you that someone with more knowledge of the court system will be able to assist you with the help you need.

If no one pops any advice on here, try PM'ing one of the team to ask for some assistance ie Amethyst. Tools, Cetelco.

Tuttsi