Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

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Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #121
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    Default Re: Lowells/? Claimforn - old Capital One

    Worth a go to request without....although in reality a hearing shouldn't be required as neither yourself or the claimant can add anything to a court error...still its an extra 125 extra in their coffers.

    We could do with some help from you

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  2. #122
    Basic Account Holder jack21 Novitiate



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    Default Re: Lowells/? Claimforn - old Capital One

    Hi Andy

    I have received a date for the hearing, the 21st June. I guess I just take all the evidence already sent and explain that I wasn't given a court hearing date?

    Cheers


  3. #123
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    Default Re: Lowells/? Claimforn - old Capital One

    The hearing really shouldn't become a mini trial..its a hearing to determine a set a side.....on a judgment that we think was placed in error because of the courts inefficiency...you simply want it to be set a side and placed back to Notice of Allocation Stage and be allowed to present your witness statement and disclosures.

    Andy

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  4. #124
    Basic Account Holder jack21 Novitiate



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    Default Re: Lowells/? Claimforn - old Capital One

    I think it will be prudent if I have the outline of my defence prepared.

    That they did not comply with the court order to send a copies of the default notice, the credit agreement and notice of assignment by the specified date. And that they have still not sent a copy of the the default notice, therefore there is no proof that a default notice had been sent.


  5. #125
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    Default Re: Lowells/? Claimforn - old Capital One

    Yes by means have it ready but it shouldn't be required......the hearing is to decide set a side due to court failings.....not the possible defence that will be presented should it proceed.

    We could do with some help from you

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  6. #126
    Basic Account Holder jack21 Novitiate



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    Default Re: Lowells/? Claimforn - old Capital One

    Hi Andy

    Had the hearing today and was successful in getting the judgement set aside with a new hearing date to be set.

    The judge was satisfied pretty much immediately, after about 2 minutes, that I wasn't aware of a hearing date but then he wanted to be sure I had grounds for a successful defence before setting aside.

    my defence was based on the fact they had not supplied a compliant Notice of Default.
    There was a lot of toing and froing between their solicitor, myself and the judge on the issue for about 25 minutes but he eventually ruled in my favour.

    Thanks for all your help on this, it still isn't over, but I am now so relieved


  7. #127
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    Default Re: Lowells/? Claimforn - old Capital One

    Well done Jack...just post to your thread when you are in receipt of the court order and further directions.I assume we will move straight to witness statements and disclosure.

    We could do with some help from you

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  8. #128
    Basic Account Holder jack21 Novitiate



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    Default Re: Lowells/? Claimforn - old Capital One

    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


  9. #129
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    Default Re: Lowells/? Claimforn - old Capital One



    We could do with some help from you

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  10. #130
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    Default Re: Lowells/? Claimforn - old Capital One

    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.

    Attached Files

  11. #131
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    Default Re: Lowells/? Claimforn - old Capital One

    Good attempt Jack...you have all the main points covered.....I would also include the following before your first paragraph....

    1. The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

    We could do with some help from you

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  12. #132
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    Default Re: Lowells/? Claimforn - old Capital One

    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.


  13. #133
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    Default Re: Lowells/? Claimforn - old Capital One

    its a witness statement not a defence..

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  14. #134
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    Default Re: Lowells/? Claimforn - old Capital One

    it's a witness statement in support of the defence of the claim, is it not?


  15. #135
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    Default Re: Lowells/? Claimforn - old Capital One

    Quote Originally Posted by jack21 View Post
    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.
    Any judgment should be based on points of law not interpretation...but that will be down to quality of the District Judge presiding.I really cant make any forecasts Jack as to how it will swing...all you can do is present the facts of the case and errors of the claimant pursuant to the CCA1974..whether or not he wishes to comply with the law is the judges decision.

    We could do with some help from you

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  16. #136
    Basic Account Holder jack21 Novitiate



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    Default Re: Lowells/? Claimforn - old Capital One

    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.


  17. #137
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    Default Re: Lowells/? Claimforn - old Capital One

    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 donationicon shortly.


  18. #138
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    Default Re: Lowells/? Claimforn - old Capital One

    hey you won!!


    well done CAGicon

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  19. #139
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    Default Re: Lowells/? Claimforn - old Capital One

    Hey good news Jack and a very well done...persistence paid off in the end.

    Thread title amended to reflect the outcome

    Delighted for you.

    Andy

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