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Order 26A Question / Afidavit Jawapan Defendan

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asked on Aug 15, 2010 at 04:29
by   1818
Hi notalawyer,

1. If the bank's lawyer agrees to mention on my behalf to the judge that I need 4 weeks to find a lawyer, does that mean I don't need to be at the 026A hearing?

2. Whether the judge gives me (in person or via the bank's lawyer) 4 weeks to find a lawyer, I'll be filing an Afidavit Jawapan Defendan with this one and only point (below), is this good enough? I can't think of anything else.

"I wish to request and examine all the active balance transfer account agreements I have signed with the plaintiff because in November 2009, when I went to  the plaintiff's Holiday Plaza branch in Johor Bahru to discuss settling in full all of my balance transfer accounts but was informed by a staff there that I was not allowed to do so due to their balance transfer agreements and they refused to give me a copy of that agreement at that time."

3. In the event the judge agrees with the plaintiff that I have no case, thus, there is no need to find a lawyer and instead proceed with 026A on the hearing day itself, is there anything I can still do?
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answered on Aug 15, 2010 at 19:54
by   notalawyer
First you must understand what hole you are pursuing.
Your current hole goes like this.

If you can prove that the bank "wrongfully" refused full settlement when you offered to settle, then the bank has no rights to any further claims.  This is a fatal hole if it can be proven.

Get your wife to go to a bank branch and pretend to want to apply for a credit card. (ask for the forms)
Note down the bank officer's name.

Then write this in your affidavit.

3. Pada sekitar bulan Nov 2009, (time this about near the time you defaulted) saya berjumpa dengan seorang pegawai bank di Holiday Plaza, Johor Bharu, bernama Cik Alice Lim untuk berbincang tentang pembayaran penuh kad kredit tersebut.
Pegawai tersebut menolak tawaran pembayaran penuh saya dengan alasan ada Perjanjian Pemindahan Baki yang tidak membenarkan pembayaran penuh.  Saya meminta salinan Perjanjian Pemindahan Baki tersebut tetapi beliau enggan memberikan kepada saya.  Sehingga hari ini, salinan Perjanjian Pemindahan Baki tidak diberi kepada saya.

You don't need to specifically request for the agreement, because if he bank refuses to supply you the agreement in a reply affidavit or did not reply, it can be taken that they admit to wrongfully refusing payment and they also have have something to hide in the balance transfer agreements.

and since you now deny the debt because of this fatal action by the bank in refusing your offer to settle, you must deny a few selected paragraphs of the bank's Order 26A affidavit.

3. In the event the judge agrees with the plaintiff that I have no case, thus, there is no need to find a lawyer and instead proceed with 026A on the hearing day itself, is there anything I can still do?
Once the bank lawyer agrees to ask for time to find a lawyer on your behalf, it shows that they do not object to your request for extra time.  The judge will not proceed with the hearing unless they request for it.
Make sure they confirm with you by email that they will do what you ask.
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answered on Aug 16, 2010 at 21:34
by   1818
Hi notalawyer,

Thank you for the sharp rebuttal advice. I'll certainly use it.

I am also thinking of asking for ALL the balance transfer agreements I signed with the bank over the last few years, should I just include it in my Afidavit Jawapan Defendan, right after the rebuttal you advised?

Oh, by the way, a bit of good news for me, the bank's lawyer agreed via email to mention on my behalf on 23 Aug, thanks to you again (at least partly), the reason I gave her... "I have contacted several law firms in KL, all of them have declined to take my case citing conflict of interest (they are either on many banks' panel of lawyers, including your client's or applying to be on their panel). I also went to BOTH Jabatan Bantuan Guaman and Legal Aid Centre (in KL & JB), they can't help me either." This is actually great news for me, I saved 2 days of my life and about RM250!
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answered on Aug 16, 2010 at 23:04
by   notalawyer
I am also thinking of asking for ALL the balance transfer agreements I signed with the bank over the last few years, should I just include it in my Afidavit Jawapan Defendan, right after the rebuttal you advised?

The more holes the merrier....
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answered on Aug 23, 2010 at 23:44
by   1818
Hi notalawyer,

I finally got a new hearing date (27 Sept) to "defend" myself, my question is...

Is 22 Sept or 23 Sept a better date to submit my affidavit to request for documents from the bank?

[The plan, obviously, is to "force" another new hearing date as far in the future as possible.]
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answered on Aug 24, 2010 at 00:40
by   notalawyer
You don't request for documents.
You force them to cough up the documents by virtue of your statements in your affidavits, the way I taught you.

If you file affidavits more than 14 days after the bank's last affidavit, the bank might request that the affidavit be  rejected by the court. If they do request that, you need a good excuse on why it was filed late, like your mother was sick or something.

If the bank thinks that your affidavit is not worth replying, they may stop there and go for the Order 26A hearing on Sept. You can only force a new hearing date if the bank requests for more time to reply to your affidavit.
So make sure your affidavit carries weight.

Good Luck.
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answered on Aug 24, 2010 at 01:17
by   1818
Thanks, notalawyer, very, very useful advice!
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answered on Aug 24, 2010 at 02:54
by   notalawyer
On the other hand, please note that the subordinate courts are more lenient on filing times of affidavits compared to the High Court. This means that even if you file an affidavit 5 weeks after the last bank's affidavit, there is only a small percentage chance that the bank will object because there is a high chance that the court will allow it due to you acting in person.
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answered on Aug 24, 2010 at 03:25
by   1818
Hi notalawyer,

Will this be in my favour... although the bank filed their 026A "Notis Permohonan" & "Afidavit" on 11 August for 23 August hearing (which has now been postponed till 27 Sept for me to find a lawyer), their 11 August "Notis Permohonan" & "Afidavit" HARD COPY sent to me by registered post has yet to reach me.

Only their email version has, on 11 August itself, however, I have informed the bank's lawyer that I am unable to open their HUGE affidavit file, thus, I'm still waiting to let my "lawyer" read their "Notis Permohonan" & "Afidavit" before my "lawyer" can reply.

The above should buy me some time, right? It is the truth anyway.
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answered on Aug 24, 2010 at 04:31
by   notalawyer
Actually, if you complain that you have not yet received the sealed copy (original stamped copy by the registrar ) for the application, the hearing will have to be postponed to another date.

However, if the bank can show that they have already sent by registered mail much earlier and you were given enough time, the judge might decide to get on with the hearing.

I think you should concentrate more on how to defeat the Order26A application than to keep thinking on how to postpone.
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answered on Aug 24, 2010 at 22:16
by   1818
Thanks again, notalawyer, I'll file my affidavit accordingly, to try to defeat their 026A application. If I don't or if I do, what's next? (By the way, their 026A "Notis Permohonan" & "Afidavit", dated 11 August, only arrived today, 24 August, which I have informed their lawyer.)
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