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Link/Kearns claimform - old MBNA debt - poss SB'd *** Claim Dismissed with Costs***


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hidden them as you've left various pers info showing

i'll sort it

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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done god they hounded you and various other non connected people too

typical for link

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Indeed.

As you'll see, at the bottom of Page 38 of their evidence bundle is a list of six or seven telephone calls.

 

I've no idea how they obtained the numbers, but these appear to be to random people living in the vicinity of my former address.

 

On the 11/08/08 they appear to have called my 96-year-old grandmother – who, incidentally, has a different surname – on a phone number which has no connection to me!

 

PS Thank you for sorting the attachment; I thought I'd removed everything I'd needed to, but it had been an extremely long day and I was very tired.

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Looks like they can't find the DN so are trying to argue that they don't need one as they are claiming your payment agreement would have fully paid it back over time, hence no need for DN.

 

I would counter argue that the do need a DN (and quote sections of CCA).

 

Did they terminate the CC agreement?

If they did, you should still argue that they need to demonstrate this was done lawfully, or else the "agreement to pay" follows from that, and would also not be lawful.

 

Andy, not sure how this argument would stack up, as they can simple say " we have a record one was sent" and not produce it?

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You're right in that they would no doubt say they have a record that one was sent.

 

However, Page 33 of their exhibits says it was posted on September 18, 2008.

 

However, as per Point 13 of my Witness Statement this does not tally with other information and must, it seems to me, cast serious doubt on what actually occurred apropos the Default Notice.

 

13. In their Witness Statement, the Claimant solicitors say in Point 23 that a Default Notice was sent on / around September 24, 2008, and seek to evidence this by reference to the activities and memos report contained at Page 33 of their bundle.



 

I have no recollection of ever having received a Default Notice be it from Link Financial Limited or the original creditor.

 

Moreover, the Claimant’s assertion that a Default Notice was sent on / around September 24, 2008, is at odds with their Particulars of Claim which state: ‘The Defendant failed to make payment as required and by 30.06.08 a default was recorded.’ Indeed, I have in my possession an Equifax credit report dated 28.12.11 which confirms the date of the default as 30.06.08. [EXHIBIT D]

 



Furthermore, I am also in possession of a letter from MBNA, dated May 20, 2008, in which they confirm they are willing to accept minimum payments of £13 per month on my account and there is no suggestion that the account is about to be defaulted. [EXHIBIT E]




 

In these circumstances, there must be considerable doubt whether I was ever served with a Default Notice.

 

This being the case, the Claimant is put to strict proof that a valid Default Notice was served pursuant to s.87[1] of the Consumer Credit Act 1974. Service of a notice on the debtor or hirer in accordance with s.88 is necessary before the assignee can become entitled, by reason of any breach by the Defendant of a regulated agreement.

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You would still need to refute their assertion that the payment agreement (£ over Y months) was subsequent to the default and that it flows from it and would not itself be valid unless a valid DN was served.

 

Did they TERMINATE the original agreement?

If so what date - do you have a notice of termination?

The DN is important as the remedy time and amount needs to align with other data.

I won because the remedy amount was over stated.

 

Remember that you just need to get the WS in today.

 

They still may choose not to go to court without a DN and are trying to get you to blink.

 

Even on the day, you can present your argument based on further research between now and then.

 

Do you have a court date?

 

Do they have any further court fees to pay?

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You would still need to refute their assertion that the payment agreement (£ over Y months) was subsequent to the default and that it flows from it and would not itself be valid unless a valid DN was served. Did they TERMINATE the original agreement? If so what date - do you have a notice of termination? The DN is important as the remedy time and amount needs to align with other data. I won because the remedy amount was over stated.

 

My understanding is the 'payment agreement' to which Link refer in their witness statement is simply a reference to the minimum monthly payment of £25 or 1% of the balance, whichever was greater, outlined in the T&Cs. As regards, a notice of termination, might this not have come with the default notice? Certainly, I have no recollection of receiving one and there's nothing in the Activities and Memos Report within Link's evidence bundle which is an obvious reference to one. I'm not sure whether that helps me or not?!

 

Remember that you just need to get the WS in today. They still may choose not to go to court without a DN and are trying to get you to blink. Even on the day, you can present your argument based on further research between now and then. Do you have a court date? Do they have any further court fees to pay?
Yes, I have a court date in the second week of October and, as far as I'm aware, they have until 4pm tomorrow to pay the court trial fee.
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Hi NB responding to your PM....

 

Just a couple of points.....

 

I would ask and put top strict proof that the claimant Sols clarify and evidence which part of the CCA1974 does a " Pre Printed Un Executed Agreement " come under ?

 

Include the fact that they rang your Grandmother.....

 

Link cant issue Default Notices only the OC...they are not the creditor...just the debt chaser.

 

Andy

 

Also there is no Termination Notice...the default notice terminates the account.

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Thanks for your speedy response.

I'm not sure I entirely understand your first point.

 

To clarify,

you think I should put in a line somewhere asking the Claimant's solicitors to clarify:

Which part of the CCA 1974 does a pre-printed unexecuted agreement come under?

 

Assuming this is what you were suggesting,

at which point in my WS would you suggest incorporating it

and, moreover, excuse my stupidity, but how does it help me?!

 

Sorry to be such a pain and thank you in anticipation

NuggyPeach

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Yes you are (or should) be responding to the paragraphs contained within their ws and refuting or stating otherwise why they are wrong.

 

So the part of your ws that covers the agreement and your responses......

 

" The claimants WS refers at point 3 to a pre printed application pack and containing" Pre Printed UnExecuted Agreement " .The claimant is put to strict proof to define and clarify which part of the legislation this type of application form is valid and transpires to become legally valid and that the claimant did comply with section 62 CCA1974.

 

 

For reference...

 

Sec62 Duty to supply copy of unexecuted agreement [F1: excluded agreements].

 

(1)If [F2in the case of a regulated agreement which is an excluded agreement] the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

(2)If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

(3)A regulated agreement [F3which is an excluded agreement] is not properly executed if the requirements of this section are not observed.

 

Sec61

 

A Duty to supply copy of executed consumer credit agreement

(1)Where a regulated consumer credit agreement, other than an excluded agreement, has been made, the creditor must give a copy of the executed agreement, and any other document referred to in it, to the debtor.

(2)Subsection (1) does not apply if—

(a)a copy of the unexecuted agreement (and of any other document referred to in it) has already been given to the debtor, and

(b)the unexecuted agreement is in identical terms to the executed agreement.

(3)In a case referred to in subsection (2), the creditor must inform the debtor in writing—

(a)that the agreement has been executed,

(b)that the executed agreement is in identical terms to the unexecuted agreement a copy of which has already been given to the debtor, and

©that the debtor has the right to receive a copy of the executed agreement if the debtor makes a request for it at any time before the end of the period referred to in section 66A(2).

(4)Where a request is made under subsection (3)© the creditor must give a copy of the executed agreement to the debtor without delay.

(5)If the requirements of this section are not observed, the agreement is not properly executed.

We could do with some help from you.

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Firstly, sincere thanks to Andyorch, RedPillGuy and dx100uk for all the help last week. As ever, it was very much appreciated. Apologies for not coming back before, but by the time I'd completed my witness statement my head was ready to explode!

 

, I've had a few days away from CAG,

during which time I [eventually] managed to ascertain that Link had paid their court fee, so here I am ready to go again!

 

That being the case, I have a couple of questions – no doubt there will be more to follow! –

 

beginning with this one:

assuming I'm right in thinking I now need to put together a skeleton argument [based on my witness statement],

what are the timeframes for doing this [mindful that my court date is Thursday, October 12]?

 

Secondly, I've been doing a bit of reading on skeleton arguments and stumbled across this

 

http://www.separateddads.co.uk/creating-skeleton-argument-for-court.html,

 

which seemed to me a fairly useful starting point. Would you guys agree?

 

As ever, thanks for your help

NuggyPeach

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Skeleton arguments should be served not less than 3 days pre hearing..but not all claims require one unless you are arguing complex points and can be useful to refer to your points of argument.

We could do with some help from you.

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Thanks for your reply – and apologies for not responding before, but I've been away for a few days.

 

Mindful of what you've said above, I'm not proposing to produce a skeleton argument as, it seems to me, my time will be better spent ensuring I've got my head fully around the major points of my witness statement [below]:

 

The case is scheduled for this Thursday [October 12] and, as you might imagine, I'm becoming increasingly apprehensive.

With that in mind, I have a few questions and would very much appreciate the thoughts of yourself, dx100uk, RedPillGuy and anyone else who might have a view.

 

I've read a few stickies, including the extremely useful The process of Litigation on Receipt or Issuing of a Summons one, but there remain a few things which I'd like to make sure I haven't misunderstood:

 

[1] The above stickie says: 'The Claimant’s representative will open the case by explaining in fairly brief terms what the case is about, and will then call their witnesses to present their evidence. Once the Claimant’s evidence is concluded it is then the Defendant's turn to bring its evidence by calling their witnesses.'

 

As detailed elsewhere, in their directions questionnaire the claimant said they would have 0 witnesses, including themselves, giving evidence on their behalf at the hearing. I understand this to mean they will rely, in the main, on their witness statement, but, at the same time, am assuming they will have a representative present to outline their case. Is this correct?

 

[2] As and when the claimant's representative has outlined their case, my understanding is that I will then get the opportunity to do likewise by refuting, where appropriate, their witness statement and bringing my own arguments to the attention of the judge.

Again, I'm assuming that I need do no more than outline my case and refer to my witness statement, but, again, would appreciate confirmation that this is the case.

 

[3] I understand each party will have the opportunity to ask questions about the other's witness statement [cross examination] and, further, to ask any additional questions [re-examination] arising as a consequence of the cross examination, before each side makes a closing submission. Again, if someone can confirm I'm on the right lines here or, alternatively, advise me of anything I haven't got quite right I'd be hugely grateful.

 

Thanks in anticipation

NuggyPeach

CAGwitnessstatement.pdf

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Mostly not applicable to Small Claims Track NB the points you raise above...the District Judge will conduct all the questioning between parties.

 

As for the witness scenario ...it should be 1 witness..unless they have advised you otherwise either in the WS or by separate notice that they do not intend to attend the hearing ?

 

Your witness statement is quite comprehensive ...well done I would however add as your intro paragraph......unless you have already served it ?

 

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.

 

As the Claimant has stated within its Directions Questionnaire that there will be nil witness,s attending the hearing, the claimant has failed to serve notice pursuant to CPR 27.9 (2 a/b) and respectfully request the claimant claim is struck out.

 

Regards

 

Andy

We could do with some help from you.

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Relieved to hear you approve of my witness statement!

 

Unfortunately, it had to be submitted to the court / claimant by last Monday [02.09.17], which I did, so am assuming it will be too late to add the two paras you've suggested above.

 

I don't know whether there's any mechanism by which I could yet add them, but am sure you will be able to tell me. For what it's worth, my feeling / hope is that I have a strong case and, given how difficult I find it to get my head around all this, it may be better to stick with what I've already got rather than further complicate things at the 11th hour.

 

 

That said, if you think this is worth pursuing then do, please, let me know!

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No mechanism apart from a supplemental WS..but not really worth it for for 1 extra paragraph......simply raise it on the day assuming they do not attend ?

We could do with some help from you.

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Okay, got ya, but can you clarify: as things stand they've said on their directions questionnaire they have zero witnesses.

 

Assuming this isn't a mistake, does this mean they'll have no-one whatsoever in court or that they'll send a solicitor to present their case [but not necessarily the one to whom their witness statement is attributed]?!

 

Thanks

NuggyPeach

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Okay, got ya, but can you clarify: as things stand they've said on their directions questionnaire they have zero witnesses.

 

Assuming this isn't a mistake, does this mean they'll have no-one whatsoever in court or that they'll send a solicitor to present their case [but not necessarily the one to whom their witness statement is attributed]?!

 

Thanks

NuggyPeach

 

It probably is a mistake...thats how Lowell and its predecessors have always completed a DQ ......including yourself is quote obvious to most....but I doubt the drafts person of the WS will be in attendance thats were the above paragraph comes into effect ...and if no one is in attendance at all then ......

 

CPR 27.9 (2 a/b) and respectfully request the claimant claim is stuck out.

We could do with some help from you.

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Thanks, again, for your input. Just a few further questions if I may:

 

[1] Can you tell me exactly what documentation I will need to take with me to the hearing on Thursday? For instance, in my witness statement – at point [6] – I have referred to s.78[1] of the Consumer Credit Act 1974. Should I, therefore, print out the relevant section from the legislation.gov.uk website and take this with me to the hearing?

 

[2] Similarly, should I provide the judge and claimant with copies of any case law which supports my case or will references to this within my witness statement – eg Birkett v Hayes [1982] at point [18] – suffice?

 

[2] Given the court and the claimant have been served with copies of my witness statement, and the documents referred to therein, I assume that, while I should go equipped with copies of these for my own reference, there is no requirement to provide further copies to the court or claimant. Is this correct?

 

Thanks in anticipation

NuggyPeach

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Yes and yes and its your choice if you wish wish to run 1 spare set.

We could do with some help from you.

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Yes and yes and its your choice if you wish wish to run 1 spare set.

 

That's helpful – thank you.

 

Furthermore, I've done a bit of Googling but, alas, am none the wiser; that being the case, was hoping someone could tell me what format the hearing will take. For instance, will I be expected to outline my case or merely to respond to questions from the judge and / or claimant.

 

If anyone can shed any further light on this or, alternatively, point me in the direction of a relevant thread – as I said, I have looked but have struggled to find one – I'd be eternally grateful.

 

Thanks

NuggyPeach

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District Judge directs all proceedings..and asks the questions....you wont talk to the claimant.

We could do with some help from you.

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District Judge directs all proceedings..and asks the questions....you wont talk to the claimant.

 

Okay, got ya.

Had been my intention to pen a short statement I could read in court outlining my case.

Is there any merit in this or am I unlikely to get the opportunity to share it?

 

Also, how ought I to address the judge?!

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sir/madam re a DJ

 

when you get there, the other side might approach you for a 'chat' about the case before. up to you whether to or not.

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