jack21
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Lowells Claimforn - old Capital One***Claim Discontinued***
jack21 replied to jack21's topic in Legal Successes
Hi Just letting you know I got a letter from Lowells, they are discontinuing the claim. Got a copy of the discontinuance form as well. Thanks for all your help. I''ll be making a donation shortly. -
Lowells Claimforn - old Capital One***Claim Discontinued***
jack21 replied to jack21's topic in Legal Successes
Yes, as I understand it, in the points made in the witness statement for my defence the judge should not rule against it as they are based on points of law rather than being based on loose evidence supplied by the Claimant. However, seeing the quality of the judges that preside over such hearings, and how much opinion may be factor in their decision making, it may well go against me. This would then leave the Judge open to an appeal on the judgement, as the defence was made on points of law and not matters open to interpretation. I am quite sure that no judge would willingly make them selves open to an appeal on a judgement, no matter what opinion they have of the case. If things turn out badly, it goes to an appeal. chances of success should be better than good, but it depends on the judge. Which I think is crazy, to be honest. -
Lowells Claimforn - old Capital One***Claim Discontinued***
jack21 replied to jack21's topic in Legal Successes
it's a witness statement in support of the defence of the claim, is it not? -
Lowells Claimforn - old Capital One***Claim Discontinued***
jack21 replied to jack21's topic in Legal Successes
Thanks Andy Based on the points made, can you see me not succeeding with the defence? I can't see how the judge can find in favour of the claimant as the defence is based on points of law and not open to interpretation by the judge. -
Lowells Claimforn - old Capital One***Claim Discontinued***
jack21 replied to jack21's topic in Legal Successes
Hi Andy Please can you have a quick look at this witness statement. The main points are :- 1. The credit agreement is deficient of the prescribed terms and is therefore incorrectly executed, pursuant of 61(1)a of the CCA. 2. An improperly executed agreement can only be enforced by way of order of the court, pursuant of 65(1) of the CCA. 3. The court is unable to make an enforcement order on a credit agreement deficient of the prescribed terms, pursuant of 127(3) of the CCA. I have also included the fact they have failed to provide a valid copy of the default notice, however I don't know if that is necessary given the above points? Thanks a lot for your help. Lowell-Witness.pdf -
Yes that is what I was thinking. It would of probably made him more vexed with me than he already was.
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So I should of applied for costs. The judge did say at the end of the hearing that he will be making no order for costs. But since I did not apply for them I suppose he did not need to. Can you apply for costs from a previous hearing retrospectively, i.e. at the judgement hearing?
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Bazza, I did not apply for costs for the summary judgement application. To be honest I would not have had much of a chance of getting them anyway with the mood the judge was in, especially as he had granted to lift the stay. Andy, well yes as the judge has ruled in my favour re the summary judgement, it does suggest that I have a good chance of winning at trail. The solicitor wanted to have a chat before the hearing, in fact we had two separate chats, in the first he told me that my defence was not appropriate to the type of hearing we were in. In the second chat, after he made a telephone call, he was trying to get me to negotiate a settlement figure before the hearing. I told him that the claimant had allowed it to get to this hearing stage before making such an approach and I wanted to see what the judge was going to say as I thought I had a very good chance of succeeding. So I was reasonably confident going into the hearing, that was until I met the judge
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Hi Just got back from the hearing and the stay was lifted, but the summary judgement was dismissed. The judge was really grumpy towards me and acted like he was the solicitors best friend. He even said to him he thinks they will be successful if they get the full terms of conditions. However he had to rule in my favour on the summary judgement because their documentation is all over the place. I just wanted to know what the unenforceable credit agreement means? Is it that a judgement can be made but any enforcement action would have to be dismissed?
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Lowells Claimforn - old Capital One***Claim Discontinued***
jack21 replied to jack21's topic in Legal Successes
Hi I have now got a new hearing date for the above claim. The 25th August. I will need to submit witness statement and any other documents needed by the 11th August. I will come up with a draft statement and put it up on here over the next few days. Would you be able to check over it for me? Thanks -
Brilliant. Thanks for this Andy. There are couple of points that will need amending, only because you don't have the full details and documentation for the case. Much appreciated.
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They will need to receive it on Monday though. So will need to be posted Saturday.
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The 22nd June is the date of the notice, the hearing date is 24th July.
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No, apart from the fact they have not sent regular statement of account, i.e. every 12 months.
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Hi Here is a quick draft of what the witness statement will contain. -------------------------------------- 1. With reference to the claimant’s witness statement, points 2 and 15. The Claimant has failed to comply with the s.78 request sent on 10/09/2016. The Claimant has provided a copy of the agreement but has failed to provide the terms and conditions that the agreement was bound to. Specifically, in the document sent by the Claimant, entitled ‘Important Financial Information’, which was attached to the agreement, in point 1.2 there is reference to condition 8.2. However, the document does not contain any more conditions beyond 1.6 and is therefore incomplete. 2. With reference to the Claimant’s witness statement, point 16. It is disputed by the defendant that a default notice was issued. A copy of the default notice has not been provided by the claimant, instead a screenshot of a computer screen. This does not constitute proof that a default notice was sent to the Defendant, and if indeed a default notice was sent, there is no proof it was compliant with section 88 of the Consumer Credit Act. 3. As the claimant has failed to provide the terms and conditions associated with the credit agreement, they have failed to comply with section 78(1) of the CCA. Therefore section 78(6) shall apply (i.e. he is not entitled, while the default continues, to enforce the agreement). 4. As the claimant has failed to provide a copy of the default notice or that it was compliant under section 88 of the CCA. They are not entitled to take enforcement action on the said amount owed.
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