Jump to content

ejleigh68

Registered Users

Change your profile picture
  • Posts

    53
  • Joined

  • Last visited

Reputation

1 Neutral
  1. SCM are also the orrible little bunch of oiks that HBOS use if they go to court (which can be fun watching a spotty little intern cock it up in front of a not to pleased County Court Judge .... )
  2. After a few quite months the case has finally been transfered to my local county court anyway below is my first stab at a skeletal defense to supply to the court. IN THE CLAIM NO: DARTFORD COUNTY COURT On Transfer from the NORTHAMPTON COUNTY COURT BETWEEN BANK OF SCOTLAND PLC THE MOUND CLAIMANT And EJLeigh68 DEFENDANT Skeleton Argument in Regard to the Defendants Application to Strike Out the General Directions Order Dated 13 May 2010 1. The original Defence was filed on the basis that the defendant did not have sufficient information to form a proper view as to whether the Defendant was indebted to the claimant as alleged or at all. 2. The Defendant therefore put the Claimant to strict proof of the claim by way of providing copies of the alleged Credit Agreement and Default Notice as stated in the Particulars of Claim, requesting the documentation pertained to in the Particulars of Claim using CPR 31.14 action on the 09 February 2010. This letter was signed for by the Claimant on 15 February 2010 an acknowledgement of service of said CPR request dated 23 February 2010 was received on 27 February 2010 by the Defendant. 3. The Claimant provided the Defendant with the documentation as listed below a. A photocopy application form for a credit card which is clearly marked as such with the wording “Your Priority Application”. (Exhibit JML1) b. A blank template of a default notice which contains no evidence of pertaining to the alleged claim. (Exhibit JML2) c. Statements of account 4. The Claimant appears to believe that these documents establish an unanswerable claim and that consequently that the test in CPR 3.4(2)(a) is satisfied. 5. The Defendant feels that as the CPR 31.14 request is outstanding and that as this case involves complex matters of Consumer Credit Law was not appropriate for Summary Judgment. The clearly labeled “Application Form” does not comply with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). 6. The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order. 7. The agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) amended by Consumer Credit (Agreements)(amendment) Regulations 2004 (SI2004/1482). It cannot therefore be enforced by a court by virtue of S127 (3) of the Consumer Credit Act 1974 under which this agreement would have been regulated. 8. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-- 1. Number of repayments; 2. Amount of repayments; 3. Frequency and timing of repayments; 4. Dates of repayments; 5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable 8. It is submitted that if the supposed credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299, and also to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) in regard to having a credit agreement for a course of action to succeed. 9. The supposed agreement is also clearly labeled as an “Application Form” and as such does not have the correct headed title (example Credit Card Agreement Regulated By the Consumer Credit Act 1974), nor does it the give the name and address of the Creditor and the Debitor within the title of the agreement. 10. The supposed agreement refers to free gifts “If you apply within 7 days”. It cannot both be an application and an agreement. Under the terms of the contra proferentum rule any ambiguity should be construed against the party that seeks to rely upon it. Consequently it is submitted that the document should be construed as not being an agreement. 11. In addition to the supposed credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) in as such as it is blank. 12. The Claimant is also put to strict proof of the date of mailing of any Default Notice that they claim was sent and that its content was valid. To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such a document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - (2001) GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt. But would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - (1996 4 All ER 119). 13. It should be noted at this point that original copies of the documents relied upon in the Particulars of Claim should be retained for 5 years under the Money Laundering Regulations 2003 not to do so could be considered an offence under the aforementioned regulations. 14.In view of the matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4 (2) The court may strike out a statement of case if it appears to the court - (a) That the statement of case discloses no reasonable grounds for bringing or defending. (b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings: or © That there has been a failure to comply with a rule. Practice direction or court order. 15. If the court considers such action inappropriate, it is requested that the court order the claimant to produce the following documents at a hearing: a) An original credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. b) Proof of the time of mailing of any default notice sent by the Claimant in respect of the account. Without the production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial. 15. In the event that the Court determines that there is an agreement in existence the Defendant seeks a declaration pursuant to S142 (1)(b) Consumer Credit Act 1974 that, in accordance with SS127 (3) and 61(1) that the aforesaid agreement is unenforceable I believe that the facts stated in this skeleton argument are true Signed: Defendant Date I apolagise in advance if anyone recognises some of their own work in here I freely admit to plagerising some excellent points from other threads on here. OK guys and girls fire away if you see anything way too bad to include....
  3. Quick point from little old me keep in touch with the court as Halitax tried to sneakily get my embarrased defence thrown out have just had to mess around with a set aside at the moment due to this. The case was still at the Bulk Centre Northampton when this was going on hadnt even gone to AQ yet... not trying to worry you just suggesting a phone call every 4 or 5 days to check what is happening.
  4. Right CAGGERS if Halifax decide to go with what they have I need a bit of advice, I am pretty confident with dealing with the lack of agreement etc in a Skeletal Defence but I am a little unsure on DN's I have tried looking around but have not found any threads where there is a total lack of DN or a blank one has been supplied. Any comments or links would be greatly appreciated as I have previously stated am getting to work on my Defece proper now so that I have plenty of time to ammend and tweak it .....
  5. Ammended Witness Statement for everyones reference. Filed on behalf of: Defendant Witness: ejleigh68 Date: 20th May 2010 IN THE NORTHAMPTON COUNTY COURT Claim No: 6666666 BETWEEN: BANK OF SCOTLAND PLC THE MOUND Claimant And ejleigh68 Defendant WITNESS STATEMENT OF ejleigh68 I, ejleigh68am the defendant in this case and a Litigant in person. The matters referred to in this statement are within my own knowledge, except where I have indicated otherwise. 1. Due to lack of information from the Claimant, the Defendant submitted an embarrassed defence on 9 February 2010, in response to the claim brought by the Claimant. 2. On receipt of the claim form, the Defendant made a request to the Claimant for information by way of CPR31.14. This request was received by the Claimant on 15 February 2010. 3. Information requested were those items mentioned in the Particulars of Claim, but not attached to the claim, due to the limitations of the Northampton Bulk Processing Centre. 4. Documents requested were necessary for the Defendant to submit a fully particularised defence and were; 4a. A copy of the credit agreement on which the Claimant bases their claim. 4b. a copy of the default notice 5. The Claimant acknowledged this request in their letter dated 23rd February 2010 which the Defendant received on 27th February 2010. 6. A further letter was received on 30th March 2010 dated 25 March 2010 the documents enclosed with this letter were; 6a. A photocopy of a document which is clearly head "Your Priority Application" which does not contain prescribed terms under the Consumer Credit Act 1974. 6b. A blank templated copy of a default notice which contains no information to support the Claimant's claim. 6c. Statements of account 7. On 15 April 2010, the Defendant wrote to the Claimant again advising that the documents provided were not those requested. Those being, a copy of the fully executed agreement containing the prescribed terms and compliant with the Consumer Credit Act 1974. Plus a copy of the Default Notice that the Claimant advised they had sent. A blank template does not show the date of issue of the Default Notice, the clause the Defendant is supposed to have breached, the amount of the default, or the date by which the default could be remedied. The Claimant signed for this letter on 20 April 2010. 8. The Claimant's response dated 27 April 2010 and received on 30 April 2010, was that in their opinion they had complied with the request in full. The Claimant further advised that they had requested the Court strike out the Defendant's defence. 9. Due to the May Bank Holiday weekend the Defendant was unable to contact the Court until the morning of 04 May 2010 at which time the Defendant was told that the case had been placed before the Judge. 10. The General Direction order for Defence Strike Out and Application to lift the stay and enter judgement was posted from the Court on 14 May 2010 and delivered to the Defendant on the 18 May 2010. 11. The Defendant feels that as the CPR 31.14 request is outstanding and that as this case involves complex matters of Consumer Credit Law it is not appropriate for Summary Judgment and that further more the Claimant should be compelled by the court to provide the copy documentation referred to within the particulars of Claim. Further more the Defendant feels that the manner in which a Strike Out of Defence was applied for by the Claimant whilst knowing they had not fully complied with a request for documents mentioned in their Particulars of Claim and not served with claim has seriously disadvantaged the Defendant, who is a Litigant in Person. STATEMENT OF TRUTH I believe the facts in this witness statement are true. Signed……………. ejleigh68 Dated 20 May 2010 Thought I would post it up as this is much better laid out than my original many thanks to Citizen B for his invaluable input .....
  6. Many thanks for your propmt reply Citezen B the documents from Halifax did not arrive until the end of March (I know should have moved for strike out myself but I had been under an immense amount of pressure at the time due to working away for days at a time) so have now included that date as well. Anyhow have slightly ammended my Witness statement along the lines you suggested and am dispatching today would have loved to wait for more comments but unfortunatley unless I send it off today I will have run out of time...
  7. Right after last nights little flap (yea very tired from work and paniced a bit) I will be sending off the paperwork to have set aside the Strike Out of my Holding Defence please see the witness statement below that I am supplying along with my N244. If you have any comments I would be appreciated as I intend to post this tomorrow moring. Claim number 6666666 Northampton (CCBC) County Court Between Bank of Scotland PLC the Mound (Claimant) And ejleigh68 (Defendant) Witness Statement Of ejleigh68 1. The original Holding Defence was filed on the basis that the Defendant did not have sufficient information to form a proper view as to whether the Defendant was indebted to the claimant as alleged and the enforceability of said alleged claim. This Holding Defence was submitted on 09th February 2010. 2. The Defendant therefore put the Claimant to strict proof of the claim by way of providing copies of the alleged Credit Agreement and Default Notice as stated in the Particulars of Claim, requesting the documentation pertained to in the Particulars of Claim using CPR 31.14 action on the 09 February 2010. This letter was signed for by the Claimant on 15 February 2010 an acknowledgement of service of said CPR request dated 23 February 2010 was received on 27 February 2010 by the Defendant. 2. The Claimant provided the Defendant with the documentation as listed below a. A photocopy application form for a credit card which is clearly marked as such with the wording “Your Priority Application”. b. A blank template of a default notice which contains no evidence of pertaining to the alleged claim. c. Statements of account 3. On 15 April 2010 the Defendant wrote to the Claimant advising that CPR 31.14 had not been complied with. And again requested copies of the documents referred to within the Particulars of Claim (a Credit Agreement and a Default Notice); so that a Full Defence could be supplied to the Court. The Claimant signed for this letter on 20 April 2010. 4. The Defendant received a letter from the Claimant on 30 April 2010 on returning from work at 1830 hrs. This letter was dated 27 April 2010 and stated that in the Claimants Claim number 66666666 Northampton (CCBC) County Court opinion they had complied with the Defendants CPR request fully and that they had upon the 23 Aril 2010 written to the court requesting that the Defendants Defence be Struck Out. 5. Due to the May Bank Holiday weekend the Defendant was unable to contact the Court until the morning of 04 May 2010 at which time the Defendant was told that the case had been placed before the Judge. 6. The General Direction order for Defence Strike Out and Application to lift the stay and enter judgement was posted from the Court on 14 May 2010 and delivered to the Defendant on the 18 May 2010. 7. The Defendant feels that as the CPR 31.14 request is outstanding and that as this case involves complex matters of Consumer Credit Law it is not appropriate for Summary Judgement and that further more the Claimant should be compelled by the court to provide the copy documentation referred to within the particulars of Claim. Further more the Defendant feels that the manner in which a Strike Out of Defence was applied for by the Claimant whilst knowing full well that the Defendant did not feel his CPR request had been satisfied as well as the fact that the Defendant was not served with the Application has seriously disadvantaged the Defendant a Litigant in Person in his ability to provide a Full Defence in respect to this claim. STATEMENT OF TRUTH I believe the facts in this witness statement are true. Signed……………. ejleigh68 Dated 19 May 2010
  8. Right it appears that I have a fly in the ointment came home tonight from work to find a direction order from NCC on my door mat stating that my defence had been struck out and the application to lift the stay and enter judgement is granted. HELP I am unsure of where to go from here, to make matters worse the letter that I wrote to the court with regard to Halifax not supplying the correct information under CPR regs has not got there checked with the wife who posted it and she only used a stamp not registered....(deep breath try not to get too annoyed) .... I have a feeling that I am totally stuffed here which is a shame as if we had gone to court they wouldnt have had a chance with what they had. Looks like they will win by default. Forgot to say that the order was granted last Thurs the 13th posted out on Friday 14th and has only just arrived todat Tues 18th it only gives 7 days to have this order varied stayed or set aside and I havent a clue how to proceed now?
  9. Citizen B re your question I have placed a holding defence in place initially as no documentation was supplied with the claim even though on their POC's they state and I quote "full particulars of which have been supplied hitherto". As for the claim itself it was the usual bumf stating that it would rely on a CREDIT AGREEMENT, none adhereance to the terms of the DEFAULT NOTICE, well so far I have recieved an application form and a blank default notice along with statements of account. As they intend to rely on these documents it seemed only fair to get them to state in a letter that they had fulfilled my CPR request which I got as posted above, my next move was to write to the court stating that they had not fulfilled the CPR request looks like they beat me to the sucker punch.
  10. Well it looks like they have been very sneaky the nice young lady I have just spoken to at the Bulk Centre said that they have recieved a letter from the claimant but quite rightly did not divulge what it contained. Time for me to send a letter to the court I think stating that I do not believe they have carried out my request under CPR for disclosure of documents. Has anyone got a template letter for this I didnt see one anywhere also do I address it to the clerk of the court after all I want to sound reasonable and respectful even though Halitax are trying to mug me by default.
  11. Update Halitax are trying to be sneaky, I wrote back to them asking them tio confirm what they had supplied me was what they intended to use in court pointing out that it is a blank default notice etc etc (always looks good I have heard to be seen as reasonable in these matters in the courts eyes) Anyhow no reply to my letter that they signed for on the 20th of April, then lo and behold this letter arrived today Imageshack - halifaxletterdated27apr.jpg - Uploaded by Imageshack user Has anyone any idea how to respond to this as it appears to be a blatant attempt to have my holding defence struck out to try and win by default, I was thinking of writing to the clerk of the court expressing some concern that they are trying to rail road things through behind everyones back whilst I was attempting to obtain the correct documentation from them?
  12. You need to post up the alledged credit agreement they sent you minus any personal information, use a site such as image shack. Then people can have a proper look if the accounts from 2004 there is a fair chance that the agreement (if it is an agreement and not just an application form) is flawed anyway. I am sure someone more knowledgable than I can then help you.
  13. Sorry also forgot to say that I have a "reconstitued" agreement to plant in front of the judge imagine their solicitor explaining away how they managed to make up 14 pages of an alledged agreement from what they have insinuated they will use in court, oppps that almost sounds like I am accusing them of deception so instead I will ask the hypothetical question instead .... PS apolagies for my poor spelling lol but I can find my dictionary at present ....
  14. Many thanks for backing up what I already thought and thanks for the useful info on the differences between the forms of credit you learn something new every day. Quick update I chatted to the court this morning apparently the case has been placed on stay anyway due to Halitaxs lack of response to them, so I think what they sent me and the accompanying letter is just a bit of mind games and bluster on their part. I intend to write back to them stating such and see if they have the "cahonnas" to rely on this junk in court. I personally feel the next people I shall hear from are another bunch of bottom feeders and off we go again, still at least if I keep the DCAs busy they wont be chasing someone else who may not have heart to fight them or is easily intimidated by them.........
×
×
  • Create New...