Cheshirelad v SPML ( set aside hearing 6th Nov )

[Budgie]

Re: Cheshirelad v SPML

Hi Cheshirelad,

I have read through the whole thread this morning.

The Court have allowed a set-aside hearing so you must prepare for this.
When notifying you of the hearing did the Court ask you ( as the Claimant ) to supply anything for the hearing?

Whether they did or didn't I suggest that you submit a witness statement, sticking to the facts surrounding the timings of your actions and the defendant's actions on your claim, leading to the default judgment and summarising with a respectful request that the Court uphold their original defualt judgment in your favour.

As you are no doubt aware the hearing is not to actually decide your claim but purely whether the Court will either allow the defendant more time to submit a defence or stick to it's original default judgment and the Judge will ( or shouldn't ) allow the Defendant to argue the merits of your claim.

I suggest that you have a go at drafting up a witness statement, maybe post it up on here and we can all chip in with help.

Additionally, prepare some short notes for your own use at the hearing just in case the Judge asks you for your views regarding some of the things that the Defendant has said about the merits of your claim. Post up those notes as well so that we can add some comments, if necessary.

PS, Please could you post up a copy of their set-aside defence ( make sure that you remove personal details first. A copy of the original POC you filed on MCOL would also be useful.

As a general note, in cases like this, it is usually better to file a slightly more detailed POC than MCOL allows. IE It is generally better to file a claim directly with your local Court ( with an attached, more detailed POC ).

To be honest, I do not think you are going to have too many problems here, the Judge will not be happy that the Defendant has blatantly disregarded court orders, careful wording of your witness statement will remind him of HOW unhappy he is or should be !!!!!!!!!!!

[Cheshirelad]

Re: Cheshirelad v SPML

Hi Cheshirelad,

I have read through the whole thread this morning.

The Court have allowed a set-aside hearing so you must prepare for this.
When notifying you of the hearing did the Court ask you ( as the Claimant ) to supply anything for the hearing?

Whether they did or didn't I suggest that you submit a witness statement, sticking to the facts surrounding the timings of your actions and the defendant's actions on your claim, leading to the default judgment and summarising with a respectful request that the Court uphold their original defualt judgment in your favour.

As you are no doubt aware the hearing is not to actually decide your claim but purely whether the Court will either allow the defendant more time to submit a defence or stick to it's original default judgment and the Judge will ( or shouldn't ) allow the Defendant to argue the merits of your claim.

I suggest that you have a go at drafting up a witness statement, maybe post it up on here and we can all chip in with help.

Additionally, prepare some short notes for your own use at the hearing just in case the Judge asks you for your views regarding some of the things that the Defendant has said about the merits of your claim. Post up those notes as well so that we can add some comments, if necessary.

PS, Please could you post up a copy of their set-aside defence ( make sure that you remove personal details first. A copy of the original POC you filed on MCOL would also be useful.

As a general note, in cases like this, it is usually better to file a slightly more detailed POC than MCOL allows. IE It is generally better to file a claim directly with your local Court ( with an attached, more detailed POC ).

To be honest, I do not think you are going to have too many problems here, the Judge will not be happy that the Defendant has blatantly disregarded court orders, careful wording of your witness statement will remind him of HOW unhappy he is or should be !!!!!!!!!!!

Budgie

Many thanks for you reply and suggestions will get going with this over the weekend

regards
Cheshirelad

[Cheshirelad]

Re: Cheshirelad v SPML

Budgie

Many thanks for you reply and suggestions will get going with this over the weekend

regards
Cheshirelad

attached court doc's

will post my witness statment soon

Cheshirelad

[Cheshirelad]

Re: Cheshirelad v SPML

Budgie

Many thanks for you reply and suggestions will get going with this over the weekend

regards
Cheshirelad

Ok here is my draft witness statement, comments please:

******* *********

1st Witness Statement
Exhibit: **1
Dated: 12th October 2009

Claim No: ****


IN THE CREWE COUNTY COURT

Between:-


****************** Claimant

And

MORTGAGES PLC Defendant



WITNESS STATEMENT OF ***************

I, *************, claimant in the above matter say as follows:-

1.I held a mortgage account number No ********* with the defendant between 17th December 1999 and 30th January 2002

2.On the 15th April 2009 under the terms of the Data Protection Act 1988 and following my Subject Access Request. The defendant wrote to me, confirming the account number ********** and supplying all the information they held in relation to this mortgage account. Copy of this letter attached

3.The above information contained a statement of the account, showing payments received and charges levied. On further examination, between 1st April 2000 and 31st December 2001 various charges and penalties amounting to £1446.13 were added to the account. These charges were levied by the defendant due to difficulties I was having meeting the monthly payments. The defendant itemised these as ‘Monthly Arrears Monitoring Charge’, ‘Failed Direct Debit Charge’. Attached mortgage account statement and summarised list of charges.

4.I wrote to the defendant on 19th April 2009 requesting a full refund of these charges or a full break down of how these charges were calculated thereby demonstrating their actual loss incurred whilst my account was in arrears. In that letter I put the defendant on notice of my intention to pursue this matter legally failing a satisfactory response. I also drew their attention to the Office of Fair Trading statement regarding these types of charges and sighted specific case law regarding unfair penalty charges levied on a mortgage account.

5.The defendant did not response positively within the time limit I offered them, 28 days. After 14 days I sent them a letter before action giving them a further period to respond or I would commence legal action.

6.As the claim is for a fixed amount well under the small claims limits, on the 12th June 2009 though Northampton County Court, claims online service, I issued proceedings aginsted the defendant at their registered office Mortgages Plc, Merrill Lynch Financial Centre, 2 King Edward Street London EC1A 9RH.


7.The defendant submitted a defence and the matter was transferred to Crewe County Court. On receipt of a copy of the defence I wrote to the court to seek a summary judgement on the basis that the defence submitted was nonsense. The defendant claimed they did no know who I was even though the account number they stated on their defence was the same quoted on all correspondence. Further more the defence was unsigned and not dated, this was clearly an attempt to delay or divert the court process.

8.On 9th July 2009 District Judge ****** gave an order giving the defendant a second opportunity to submit a valid defence by 1st August 2009.

9.After this date I checked with the court over the telephone and personally visited to the court. More than one different members of court staff confirmed no defence had be received.

10.Practice direction for court documents 5.3 clearly states for the submission for documents by fax. It is not the sender’s machine date and time that it says a document was sent but the time when a court receives the document. Therefore the defendant’s claim of submission cannot be accepted.

11.The defendant has had plenty of time and been given second chances to prepare and submit a defence on time. They have clearly displayed a lack of regard to court process and orders and I therefore opposed their application to set aside the court order.

12.I believe the contents of this statement are true

[Budgie]

Re: Cheshirelad v SPML

One first read through it's fine.
But would like to review in a bit more detail tomorrow morning for you and may have one or two slight amendments / additions to suggest.


Regards Budgie

[Cheshirelad]

Re: Cheshirelad v SPML

One first read through it's fine.
But would like to review in a bit more detail tomorrow morning for you and may have one or two slight amendments / additions to suggest.


Regards Budgie

Budgie

Many thanks for you reply and suggestions will get going with this over the weekend

regards
Cheshirelad

thanks Budgie look forwrd to seeing your suggestions, will tweak any grammer/spellings in any event

regards
cheshirelad
------------------------------- merged -------------------------------

thanks Budgie look forwrd to seeing your suggestions, will tweak any grammer/spellings in any event

regards
cheshirelad

Budgie

Many thanks for you reply and suggestions will get going with this over the weekend

regards
Cheshirelad

can you read the attachments of the defendants submisions ok? I seem to struggle with posting attachments

[Budgie]

Re: Cheshirelad v SPML

I have added a few little tweaks and changed a few bits around, but don't want to change things to much as what you had writtemn was basically OK. I believe the gist of things is OK as the hearing is to decide the matter of the set aside request, not to decide your claim.

Have a read below and let me know what you think?
Please can you post up a copy of the POC you submitted.

After we have got this sorted we need to work on some notes for your personal use at the Court. The Judge will rely as much on your verbal submission as your witness statement. Nothing to worry about, we will try to make sure that you are very well prepared.


Claim No: ****


IN THE CREWE COUNTY COURT

Between:-


****************** Claimant

And

MORTGAGES PLC Defendant



1st WITNESS STATEMENT OF **************
IN RESPONSE TO DEFENDANT'S SET ASIDE REQUEST

I, *************, claimant in the above matter say as follows:-

1. I held a mortgage account number, No *********, with the defendant between 17th December 1999 and 30th January 2002

2. On the 15th April 2009 under the terms of the Data Protection Act 1988 and following my Subject Access Request. The defendant wrote, confirming the account number ********** and supplying all the information they held in relation to this mortgage account. Copy of letter attached

3. The supplied information contained a statement of the account, showing payments received and charges levied. On further examination, between 1st April 2000 and 31st December 2001 various charges and penalties amounting to £1446.13 were added to the account. The defendant itemised these as ‘Monthly Arrears Monitoring Charge’ and ‘Failed Direct Debit Charge’. Attached are copies of the mortgage account statement and a summarised list of the charges.

4. I wrote to the defendant on 19th April 2009 requesting a full refund of these charges or alternatively a full break down of how these charges were calculated thereby demonstrating their actual loss incurred whilst my account was in arrears. In that letter I put the defendant on notice of my intention to pursue this matter legally failing a satisfactory response. I also drew their attention to the Office of Fair Trading statement regarding these types of charges and sighted specific case law regarding unfair penalty charges levied on a mortgage account.

5. The defendant did not respond positively within the 28 days time limit specified. After a further 14 days I sent them a letter before action giving them a further period to respond.

6. As my claim was for a fixed amount, well within the small claims limit, I issued a money claim against the defendant at their registered office, Mortgages Plc, Merrill Lynch Financial Centre, 2 King Edward Street London EC1A 9RH, via the Northampton County Court, claims online service on 12th June 2009.


7. The defendant submitted a defence and the matter was transferred to Crewe County Court. On receipt of a copy of the defence I wrote to the court to seek a summary judgement on the basis that the defence submitted was in contravention of civil procedure rules. The defendant claimed they could not trace my account even though the account number they stated on their defence was the same as quoted on all previous correspondence. Furthermore, the defence was unsigned and not dated.

8. On 9th July 2009 District Judge ****** issued an order giving the defendant one final opportunity to submit a valid defence, by 1st August 2009.

9. After this date had passed I checked with the court by telephone and then personally visited the court. Court staff confirmed that no defence had been received.

10. Practice direction for court documents 5.3 clearly states, in relation to submission of documents by fax, that it is not the sender’s fax machine date and time but the time that a court receives a document which is relevent. Therefore the defendant’s claim of submission should not be accepted by the court as irrespective of the defendants contention that a defence had been faxed, no such document was actually received by the court before the specified date.

11. The defendant has had more than sufficient time and has already been provided, by the court, with an additional opportunity to submit a defence. I therefore respectfully request that the court dismiss the defendant's application.

12. Really want to add something in here about the defendant's questioning the suitability of your POC. You havent yet posted up your original POC ( as filed via money claim. Any chance we could see it ?

13. I believe the contents of this statement are true

[Cheshirelad]

Re: Cheshirelad v SPML

I have added a few little tweaks and changed a few bits around, but don't want to change things to much as what you had writtemn was basically OK. I believe the gist of things is OK as the hearing is to decide the matter of the set aside request, not to decide your claim.

Have a read below and let me know what you think?
Please can you post up a copy of the POC you submitted.

After we have got this sorted we need to work on some notes for your personal use at the Court. The Judge will rely as much on your verbal submission as your witness statement. Nothing to worry about, we will try to make sure that you are very well prepared.


Claim No: ****


IN THE CREWE COUNTY COURT

Between:-


****************** Claimant

And

MORTGAGES PLC Defendant



1st WITNESS STATEMENT OF **************
IN RESPONSE TO DEFENDANT'S SET ASIDE REQUEST

I, *************, claimant in the above matter say as follows:-

1. I held a mortgage account number, No *********, with the defendant between 17th December 1999 and 30th January 2002

2. On the 15th April 2009 under the terms of the Data Protection Act 1988 and following my Subject Access Request. The defendant wrote, confirming the account number ********** and supplying all the information they held in relation to this mortgage account. Copy of letter attached

3. The supplied information contained a statement of the account, showing payments received and charges levied. On further examination, between 1st April 2000 and 31st December 2001 various charges and penalties amounting to £1446.13 were added to the account. The defendant itemised these as ‘Monthly Arrears Monitoring Charge’ and ‘Failed Direct Debit Charge’. Attached are copies of the mortgage account statement and a summarised list of the charges.

4. I wrote to the defendant on 19th April 2009 requesting a full refund of these charges or alternatively a full break down of how these charges were calculated thereby demonstrating their actual loss incurred whilst my account was in arrears. In that letter I put the defendant on notice of my intention to pursue this matter legally failing a satisfactory response. I also drew their attention to the Office of Fair Trading statement regarding these types of charges and sighted specific case law regarding unfair penalty charges levied on a mortgage account.

5. The defendant did not respond positively within the 28 days time limit specified. After a further 14 days I sent them a letter before action giving them a further period to respond.

6. As my claim was for a fixed amount, well within the small claims limit, I issued a money claim against the defendant at their registered office, Mortgages Plc, Merrill Lynch Financial Centre, 2 King Edward Street London EC1A 9RH, via the Northampton County Court, claims online service on 12th June 2009.


7. The defendant submitted a defence and the matter was transferred to Crewe County Court. On receipt of a copy of the defence I wrote to the court to seek a summary judgement on the basis that the defence submitted was in contravention of civil procedure rules. The defendant claimed they could not trace my account even though the account number they stated on their defence was the same as quoted on all previous correspondence. Furthermore, the defence was unsigned and not dated.

8. On 9th July 2009 District Judge ****** issued an order giving the defendant one final opportunity to submit a valid defence, by 1st August 2009.

9. After this date had passed I checked with the court by telephone and then personally visited the court. Court staff confirmed that no defence had been received.

10. Practice direction for court documents 5.3 clearly states, in relation to submission of documents by fax, that it is not the sender’s fax machine date and time but the time that a court receives a document which is relevent. Therefore the defendant’s claim of submission should not be accepted by the court as irrespective of the defendants contention that a defence had been faxed, no such document was actually received by the court before the specified date.

11. The defendant has had more than sufficient time and has already been provided, by the court, with an additional opportunity to submit a defence. I therefore respectfully request that the court dismiss the defendant's application.

12. Really want to add something in here about the defendant's questioning the suitability of your POC. You havent yet posted up your original POC ( as filed via money claim. Any chance we could see it ?

13. I believe the contents of this statement are true

Budgie

Many thanks for your time and effort, yes I like your tweaks, I can be a tad blunt and you have smoothed the edge's so to speak.

I may be being a little dim here POC? I did attach all the doc's in my earlier post but let me know if I'm missing something

If this refer's to my orginal online claim then this is the text I entered in the claim particulars, which in hindsight was thin on content.

Mortgage Account No: *********
Between 01-04-2000 and 31-12-2001 various
unfair charges and penalties were added to
the above account totally £1446.13 plus
interest of £973.83 calculated at 8%( details
already notified). Total £2419.96
The claimant claims interest under section 69
of the County Courts Act 1984 at the rate of
8% a year from 19th April 2009 to 12th June
2009 of £29.17 and also
interest at the same rate up to the date of
judgment or earlier payment at a daily rate
of £0.53pence.

thanks again

Cheshirelad

[Budgie]

Re: Cheshirelad v SPML

Budgie

Many thanks for your time and effort, yes I like your tweaks, I can be a tad blunt and you have smoothed the edge's so to speak.
Am sure you would have done so anyway, but I took the opportunity whilst I was reading through.

I may be being a little dim here POC? I did attach all the doc's in my earlier post but let me know if I'm missing something POC = "Particulars of claim" basically what you have posted below

If this refer's to my orginal online claim then this is the text I entered in the claim particulars, which in hindsight was thin on content.

Mortgage Account No: *********
Between 01-04-2000 and 31-12-2001 various
unfair charges and penalties were added to
the above account totally £1446.13 plus
interest of £973.83 calculated at 8%( details
already notified). Total £2419.96
The claimant claims interest under section 69
of the County Courts Act 1984 at the rate of
8% a year from 19th April 2009 to 12th June
2009 of £29.17 and also
interest at the same rate up to the date of
judgment or earlier payment at a daily rate
of £0.53pence.

I agree that this is thin on content but its really difficult to do anything meaningful with the character limit on an online claim. It's quite usual for a defendant to attack a claimants online POC as not being very well particularised ( Its happened to me before ). Personally I now recommend filing claims directly with your local county court ( no limit on POC content ). Bear in mind that the set aside hearing is not about the merits of your POC though, it's about the defendant's failure to comply with CPR and Judges orders. Taking all this into account I suggest we don't mention your POC ( or the defendant's criticisim of your POC ) on the witness statement.

When / if you get to the stage of submitting further court documents we can help you with a super dooper version of an expanded POC / witness statement. So don't worry about that for now.

thanks again

Cheshirelad

No Problem.
Get the WS finished and sent off to Court ( copy to defendant ).
Also, don't forget to produce some notes. Draft something and post it up on here and we can all chip in with extra points if necessary.

PS: Have added to title of thread ( just as a reminder ) Hope you dont mind !

[Cheshirelad]

Re: Cheshirelad v SPML

No Problem.
Get the WS finished and sent off to Court ( copy to defendant ).
Also, don't forget to produce some notes. Draft something and post it up on here and we can all chip in with extra points if necessary.

PS: Have added to title of thread ( just as a reminder ) Hope you dont mind !

I have added a few little tweaks and changed a few bits around, but don't want to change things to much as what you had writtemn was basically OK. I believe the gist of things is OK as the hearing is to decide the matter of the set aside request, not to decide your claim.

Have a read below and let me know what you think?
Please can you post up a copy of the POC you submitted.

After we have got this sorted we need to work on some notes for your personal use at the Court. The Judge will rely as much on your verbal submission as your witness statement. Nothing to worry about, we will try to make sure that you are very well prepared.


Claim No: ****


IN THE CREWE COUNTY COURT

Between:-


****************** Claimant

And

MORTGAGES PLC Defendant



1st WITNESS STATEMENT OF **************
IN RESPONSE TO DEFENDANT'S SET ASIDE REQUEST

I, *************, claimant in the above matter say as follows:-

1. I held a mortgage account number, No *********, with the defendant between 17th December 1999 and 30th January 2002

2. On the 15th April 2009 under the terms of the Data Protection Act 1988 and following my Subject Access Request. The defendant wrote, confirming the account number ********** and supplying all the information they held in relation to this mortgage account. Copy of letter attached

3. The supplied information contained a statement of the account, showing payments received and charges levied. On further examination, between 1st April 2000 and 31st December 2001 various charges and penalties amounting to £1446.13 were added to the account. The defendant itemised these as ‘Monthly Arrears Monitoring Charge’ and ‘Failed Direct Debit Charge’. Attached are copies of the mortgage account statement and a summarised list of the charges.

4. I wrote to the defendant on 19th April 2009 requesting a full refund of these charges or alternatively a full break down of how these charges were calculated thereby demonstrating their actual loss incurred whilst my account was in arrears. In that letter I put the defendant on notice of my intention to pursue this matter legally failing a satisfactory response. I also drew their attention to the Office of Fair Trading statement regarding these types of charges and sighted specific case law regarding unfair penalty charges levied on a mortgage account.

5. The defendant did not respond positively within the 28 days time limit specified. After a further 14 days I sent them a letter before action giving them a further period to respond.

6. As my claim was for a fixed amount, well within the small claims limit, I issued a money claim against the defendant at their registered office, Mortgages Plc, Merrill Lynch Financial Centre, 2 King Edward Street London EC1A 9RH, via the Northampton County Court, claims online service on 12th June 2009.


7. The defendant submitted a defence and the matter was transferred to Crewe County Court. On receipt of a copy of the defence I wrote to the court to seek a summary judgement on the basis that the defence submitted was in contravention of civil procedure rules. The defendant claimed they could not trace my account even though the account number they stated on their defence was the same as quoted on all previous correspondence. Furthermore, the defence was unsigned and not dated.

8. On 9th July 2009 District Judge ****** issued an order giving the defendant one final opportunity to submit a valid defence, by 1st August 2009.

9. After this date had passed I checked with the court by telephone and then personally visited the court. Court staff confirmed that no defence had been received.

10. Practice direction for court documents 5.3 clearly states, in relation to submission of documents by fax, that it is not the sender’s fax machine date and time but the time that a court receives a document which is relevent. Therefore the defendant’s claim of submission should not be accepted by the court as irrespective of the defendants contention that a defence had been faxed, no such document was actually received by the court before the specified date.

11. The defendant has had more than sufficient time and has already been provided, by the court, with an additional opportunity to submit a defence. I therefore respectfully request that the court dismiss the defendant's application.

12. Really want to add something in here about the defendant's questioning the suitability of your POC. You havent yet posted up your original POC ( as filed via money claim. Any chance we could see it ?

13. I believe the contents of this statement are true

Budgie

Many thanks for your time and effort, yes I like your tweaks I can be a tad blunt and you have smoothed the edge's so to speak.

I may be being a little dim here POC? I did attach all the doc in my earlier post but let me know

If this refer's to my orginal online claim then this is the text in I entered in claim particulars, which in hindsight was thin on content.

Mortgage Account No: 65420047
Between 01-04-2000 and 31-12-2001 various
unfair charges and penalties were added to
the above account totally £1446.13 plus
interest of £973.83 calculated at 8%( details
already notified). Total £2419.96
The claimant claims interest under section 69
of the County Courts Act 1984 at the rate of
8% a year from 19th April 2009 to 12th June
2009 of £29.17 and also
interest at the same rate up to the date of
judgment or earlier payment at a daily rate
of £0.53pence.

Ok witness statments done, dustered and gone today 1st class recorded to beat the postal strikes next week

Will starting putting few notes together for the big day!

they may do me a favour and not turn up, but I have a feeling they will and adopt the high and mighty line ( which I hope they actual will)

I'm pretty confident, the facts speak for themselves

thanks Budgie for you help

[Cheshirelad]

Re: Cheshirelad v SPML ( set aside hearing 6th Nov )

I have a couple of questions, if anyboby can help:

If they don't turn up, could I ask the Judge to make an order saying, basically they can't apply to set aside again?

If they try to start and present their defence, whats my best approach with the Judge. I've been in smalls court hearings before and usaually both sides get the opportunity to present their case, whilst the other party has to listen without interuption. Any ideas with this please.



Cheshirelad

[Budgie]

Re: Cheshirelad v SPML ( set aside hearing 6th Nov )

It would be very foolish of them not to turn up. The Judge would most likely order their set aside request dismissed, award you some costs for the wasted day and re-instate his original default judgment in your favour.

They applied for the set aside so will get the opportunity to speak first. You should not interupt whilst they are talking unless asked a question by the Judge.

After they have spoken you will get the opportunity to state your own arguments as to why set-aside should not be granted, you have already submitted youir witness statement to this effect so it's just a matter of taking the Judge through your side of the story. The Judge could ask questions about your witness statement but in general the Judge would not normally allow the other side to talk about your actual claim as matters should be concentrated on their set-aside request.

However, it does happen which is why you should listen very carefully to everything that is said and have some notes of your own ready to respond with just in case.

I will post up suggestions for things to include in your notes later this evening.

Budgie

[Cheshirelad]

Re: Cheshirelad v SPML ( set aside hearing 6th Nov )

It would be very foolish of them not to turn up. The Judge would most likely order their set aside request dismissed, award you some costs for the wasted day and re-instate his original default judgment in your favour.

They applied for the set aside so will get the opportunity to speak first. You should not interupt whilst they are talking unless asked a question by the Judge.

After they have spoken you will get the opportunity to state your own arguments as to why set-aside should not be granted, you have already submitted youir witness statement to this effect so it's just a matter of taking the Judge through your side of the story. The Judge could ask questions about your witness statement but in general the Judge would not normally allow the other side to talk about your actual claim as matters should be concentrated on their set-aside request.

However, it does happen which is why you should listen very carefully to everything that is said and have some notes of your own ready to respond with just in case.

I will post up suggestions for things to include in your notes later this evening.

Budgie

I have a couple of questions, if anyboby can help:

If they don't turn up.could I ask the Judge to make an order saying thats it, basically they can't apply to set aside again?

If they try to start and present their defence, whats my best approach with the Judge. I've been in smalls hearings before and usaually both sides get the opportunity to present their case, whilst the other party has to listen without interuption. any

thanks Budgie

I check back later

regards
Cheshirelad

[Cheshirelad]

Re: Cheshirelad v SPML ( set aside hearing 6th Nov )

With just a week to go, I'm starting to focus my attention and have gone though their witness statement and would like to get a little help/opinions on my thoughts

They say that on receipt of my claim from Northampton County Court they could not find my account number and mistakenly and simply sent the papers back to the court.

There has been an exchange of letters with me quoting the account number about 6 times, so this doesn't add up

But it was the court who treated this as a defence (so its the courts fault) and then transfer the matter to Crewe CC and an AQ was sent to the defendant and they realised their error, instructed their solicitors who set about preparing a defence

So in one breath they didn't realise what a summons was (mortgage company who doesn't known what one is?) yet they new what a AQ was?? and instructed their solicitor

They then go on to say how they prepared their defence and submitted it on time quote the time there machine faxed it over and therefore they complied with the court order that they had to submit a defence by a certain time

This does not comply with practice directions for submission of court document.

They go on to say that the order (obtained by me)was giving them time to submit a defence and that’s what they were doing and therefore the judgement should be set aside as clearly it was entered by mistake

They really want their cake and eat it, it like every one's making mistakes (in particular the court) but them

They repeat they have complied with the order to submit a defence again in there next paragraph and then go on to say that if the judgement is not set aside then it is necessary to test case under CPR 13.3 as their application was made promptly.

Not sure what this is about? Should I be worried?

They then start to talk about how they should not have a problem defending the claim as there was no agreement between the defendant and me it was with another company called Mortgages 2 Ltd and was in join names with my wife. Therefore they have an absolute defence and ask for my claim to be struck out.

I have already in my WS submitted a letter from Mortgages PLc which clearly states my account number with them and they confirm they have sent all the information they have sent relating to the mortgage account I held with them.

Can't see were they are coming from here? My little concern is, I made the claim in my name, not jointly with my wife, who is right behind me, so to speak!

They go on to say my claim has no break down of charges or what loss I have suffered and I appear to be bringing a claim akin the bank charges and if so these are all on hold

All details have been submitted to the defendant and the court and all correspondence prior to my court claim were replied to by the defendant so I can't see how they can say they don't know what it all about

And finally they say: judgement should be set aside, my claim struck out or amended with particularisation or the claim should be stayed pending the high court ruling on bank charges

Any pointers or comments to add would be very helpful

Cheshireland

[Budgie]

Re: Cheshirelad v SPML ( set aside hearing 6th Nov )

With just a week to go, I'm starting to focus my attention and have gone though their witness statement and would like to get a little help/opinions on my thoughts

They say that on receipt of my claim from Northampton County Court they could not find my account number and mistakenly and simply sent the papers back to the court.

There has been an exchange of letters with me quoting the account number about 6 times, so this doesn't add up GOOD

But it was the court who treated this as a defence (so its the courts fault - NO - ITS THE DEFENDANTS FAULT) and then transfer the matter to Crewe CC and an AQ was sent to the defendant and they realised their error, instructed their solicitors who set about preparing a defence

So in one breath they didn't realise what a summons was (mortgage company who doesn't known what one is?) yet they new what a AQ was?? and instructed their solicitor GOOD

They then go on to say how they prepared their defence and submitted it on time quote the time there machine faxed it over and therefore they complied with the court order that they had to submit a defence by a certain time

This does not comply with practice directions for submission of court document. GOOD

They go on to say that the order (obtained by me)was giving them time to submit a defence and that’s what they were doing and therefore the judgement should be set aside as clearly it was entered by mistake

They really want their cake and eat it, it like every one's making mistakes (in particular the court) but them GOOD

They repeat they have complied with the order to submit a defence again in there next paragraph and then go on to say that if the judgement is not set aside then it is necessary to test case under CPR 13.3 as their application was made promptly.

Not sure what this is about? Should I be worried? BUT IT WASNT RECEIVED BY THE COURT AND CPR IS CLEAR ON THIS ISSUE - IF JUDGE WISHES TO ACCEPT SET ASIDE REQUEST THEN HE CAN DO SO BUT IT DOESNT MEAN THAT YOUR CLAIM IS INVALID, ONLY THAT JUDGE IS WILLING TO GIVE DEFENDANT THE BENEFIT OF THE DOUBT

They then start to talk about how they should not have a problem defending the claim as there was no agreement between the defendant and me it was with another company called Mortgages 2 Ltd and was in join names with my wife. Therefore they have an absolute defence and ask for my claim to be struck out. HEARING IS ONLY ABOUT SET ASIDE, NOTHING TO DO WITH YOUR CLAIM, AT THE MOMENT THAT HAVE NOT LEGALLY SUBMITTED A DEFENCE

I have already in my WS submitted a letter from Mortgages PLc which clearly states my account number with them and they confirm they have sent all the information they have sent relating to the mortgage account I held with them. GOOD -RE YOUR ABOVE POINT REGARDING THIER SUPPOSED DEFENCE

Can't see were they are coming from here? My little concern is, I made the claim in my name, not jointly with my wife, who is right behind me, so to speak! THEY ARE TRYING TO WANGLE OUT OF THE CLAIM ON THE SINGLE NAME JOINT NAME ARGUMENT. THE ACCOUNT NUMBER IS THE KEY THING.

They go on to say my claim has no break down of charges or what loss I have suffered and I appear to be bringing a claim akin the bank charges and if so these are all on hold. ONCE AGAIN THIS HEARING IS ABOUT THE SET ASIDE REQUEST, NOT THE MERITS OF YOUR CLAIM

All details have been submitted to the defendant and the court and all correspondence prior to my court claim were replied to by the defendant so I can't see how they can say they don't know what it all about
GOOD

And finally they say: judgement should be set aside, my claim struck out or amended with particularisation or the claim should be stayed pending the high court ruling on bank charges UP TO THE JUDGE BUT THE TEST CASE IS NOT RELEVENT TO YOUR INSTANT CLAIM, NOR WILL THE OUTCOME OF THE TEST CASE IMPACT YOUR CLAIM. YOUR CLAIM IS ABOUT PENALTY CHARGES APPLIED TO YOUR ACCOUNT A MATTER WHICH CAN EASILY BE DECIDE BY THE COURT AS IT IS A MATTER OF COMMON LAW. IF JUDGE DECIDES TO ACCEPT SET ASIDE APPEAL THEN YOU CAN EASILY RE PARTICULARISE YOUR CLAIM. BUT THAT IS NOT THE MATTER TO BE DECIDED AT THE HEARING. THE MATTER TO BE DECIDED IS THE APPARANT ABUSE OF THE CPR BY THE DEFENDANT.

Any pointers or comments to add would be very helpful

Cheshireland

Sorry have waffled a bit but hopefully you get the gist of things, I will work on this a bit more over the weekend.