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pigland

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About pigland

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  1. Sitting Duck, Good luck, you are being told you have a case but it isn't going to be easy. I would try and go to a Solicitor or wait for someone to show you how to present your case.
  2. Hi all, Ref; Northern Rock sell off Question; Doesn't Northern Rock (NRAM) encompass B&B's buy-to-let mortgages? Have a look at NRAM's Annual results and profits! Am I missing something? The money lent for all Buy-to let Mortgages was not lent by the Government. The properties get repossessed through questionable means (some call it theft) the Government gets the loan money that they never lent and then they sell off what's left. Hey talk about going to the bank to get a loan! Don't you just love the irony! Kind regards Pigland p.s Ed: Been enjoying your posts! Good work!
  3. Hey Diddled, That's a positive step! To explain to others why this is important; The aim at present of banks is to reduce their exposure to property and to shore up their balance sheets. A way of achieving this goal is to put pressure on property owners. The banks manipulate the archaic Law of Property Act (LPA) 1925 to appoint LPA receivers to take possession of property by circumnavigating the Court process. This allows them in many cases to leave properties empty with no rental income whilst pushing up the borrowers mortgage arrears. These arrears may be minimal, they may be caused by a tenants inability to pay for a month or two or unfair charges applied to the account by the bank. Banks charge fees for arrears, when the banks have escalated the arrears they blame the borrower and the lenders themselves look beyond reproach. The Law of Property Act (LPA) 1925 applies to Commercial property and ‘residential’ buy-to-let. In both commercial and ‘residential’ buy-to-let situations the process of instructing LPA receivers they use to put large portfolio owners under stress in order to instruct LPA receivers on the rest of the portfolio. LPA receivers have many tools in their armaments to charge bolt on fees to the borrowers mortgage account. The situation causes stress to the owners and tenants of these properties, these properties may be the owners pension and only source of income. This situation is stressful to the tenants as they are evicted from their home or workplace. This is a truly nasty process that is legal but immoral and in the long run damaging on many levels to our economy. Possession proceedings on any property must be decided by an independent Judge and not by the banks. A reform bill is needed to protect many individuals who are having their homes and livelyhoods taken by banks and lenders. This process of using The Law of Property Act (LPA) 1925 needs to be addressed, however many powerful people have a vested interest in not changing this law! Who owns the banks? Don't think it's you; because you get the unemployment, housing and tax bill but none of the perks! Kind regards, Pigland If you have been affected by anything that involves The Law of Property Act and LPA receivers please look to attend the meeting in London on Thursday 17th March. Details to be found on this thread.
  4. Have MEX instructed LPA receivers on you? Please refer to Chillinglongs previous post! This is important!
  5. robbo 37, Record every phone call you have with Walker Singleton and with Mortgage Express. This will become invaluable later. kind regards, PL
  6. At last I get to talk to an MP! Welcome to CAG! Elsinore has asked IMHO some very relevant questions. We do need to know the POC (Particulars of claim) in order to comment. You say you've never had an agreement. Did they send a copy of an agreement with the POC? I'm no expert but if they've not sent a copy of the signed agreement and you've not got one. Then I do not know how they can establish a claim. I assume as this figure is between £50-£100k then the Consumer Credit Act is not relevant?! Does anyone else have any thoughts or ideas on this point or have any threads for MP to look at? Kind regards, PL
  7. HI NICKXX Well done for not letting this parasite in! Have you been charged unfair charges? Have you put the account in dispute? If you speak to the lender again; Always record the phone call. If you can't voice record(tell them at the beginning you're recording) always write down; Date of call, time who you spoke to and write as fast as possible! Kind regards, PL :@)
  8. Important questions for MEX customers to answer; Did one of the ex employee's of MEX set up Templetons? Did Templetons sell out to LSL in February? Do LSL own the valuers that value the properties that Templetons put up for sale? Do LSL own the estate agents that sell the properties for the LPA receivers? Do LSL own a big corporate letting department that manage a lot of properties under LPA receivership and do they get a percentage of the rent? Would they charge other bolt on fees? Would the borrower be responsible for these fees? Would MEX ever look at assisted sales or lifetime receivership? Who would they target? If you have an interest only mortgage and you only paid interest only could you be a target? Look at Ireland! Were the FSA instrumental in the Nationalisation of MEX? Does the instruction of LPA receivers by MEX suit the FSA? If the properties are sold and the loans repaid will this then go to the Government? Were you really in trouble or were MEX in trouble? Were you charged unfair fees? Did your properties go into receivership at about the time MEX were being Nationalised? What did happen to the £400million of shareholders money? If 'your receiver' doesn't do their job properly have you instructed the lender not to pay their bills until you are satisfied?
  9. GH and all, Yep, costs and all. I thoroughly enjoyed myself in Court because of the grounding, advice and knowledge passed on by you all. The Claimants i'd say weren't having their best day! I particularly enjoyed the bit when the Claimants Solicitor said to me that I shouldn't be asking for the case to be Struck out on a point of law!?! I did point out that it was a Law Court. I felt the Judge was enjoying it too! I've Private messaged a few of you but some of you that have helped are blocked from receiving PM's soooooooooo. A Big thank you! :@)
  10. FOR THE CLAIMANT!!!!!!!!! Pigland Won! Thank you all so very much!!! I hope this thread gives others the strength to fight back. Thank you all that have helped and contributed.... I went to Court and the Judge Struck the claim out! Support the CAG I will! xxx :@) LOL Pigland
  11. I have now been to Court... Unfortunately after such a lot of effort there is bad news.....
  12. A big thank you to everyone that has helped or taken an interest. I will post up the Witness Statement I eventually submitted. I have now had some sleep and my brain is again functioning as normal. Well... as normal as my brain can! Thanks again. Kind regards, Pigland
  13. Witness Statement of Miss D Screet 08 September 2010 Re Hearing XXXX 22 September 2010 In the XXXXXX County Court Claim Number: XXXXXXX Between: CL Finance (Claimant) -And- Miss D Screet (Defendant) I, XXXX of XXXXX, XXXXXXX, being the Defendant, am a litigant in person in this case. 1. I make this Witness Statement in support of my defence against the Claimants claim against me. 2. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests. 3. There is now produced and shown to me a bundle of documents marked CL Finance1. This bundle contains the Claimants exhibits xxx1, xxx2, xxx3, xxx4, xxx5, xxx6, xxx7, xxxx8 Credit Agreement 4. The applicant has served a copy of the agreement referred to as exhibit xxx1 in the Claimants Witness Statement. The claim is based upon this agreement. 5. The claimant has not filed a legible copy of the credit agreement that complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered by Order made by District Judge xx made on 28 February 2010 and yet again by District Judge xx on 18 May 2010 at xxxx County Court. 6. The agreement referred to as their exhibit xxx1 is not easily legible, therefore does not comply with the requirements of Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). Furthermore I understand that this case confirmed by HHJ WAksman QC in Carey v HSBC 7. The T&C's supplied by the claimant appear to have no relation to the original agreement, the defence has a prior statement showing a charge of £25.00, exhibit xxxx, the T&C's supplied by the claimant show charging at £12.00, of further concern is that the fonts and layouts are significantly different, therefore the T&C's cannot be or have formed any part of the original agreement, which has been ordered to be produced by District Judge xxxxx and again by District Judge xxx Statement of Account 8. As per the Order made by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxx County Court; The Claimant has failed to supply ‘A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’. 9. The Defence notes that the documents filed with the court by the Claimant and referred to as xxx2 included no more than the same incomplete set of copy statements previously disclosed by the Claimant. Yet again the statements supplied commence in February 2008 with a carried forward balance and end in January 2009. The claimant has not supplied strict proof of all sums claimed. 10. My correct PO BOX address was notified to the Original creditor MBNA on 5th December 2008 and again on January 5 2009. Notice of Assignment 11. No Notice of Assignment has been provided as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxx County Court; Default Notice 12. The Consumer Credit Act 1974 s87 & 88 together with Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. 13. The Claimant refers to a Default Notice within their Witness Statement, their exhibit xxx3. This Default Notice is dated 6 February 2009 (Friday). 14. The amount of arrears stated in the Default Notice has not been substantiated as the Claimant has failed to Supply a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxxx County Court. 15. The copy Default Notice referred to by the Claimant as xxx3 is incorrect as it does not comply with state legislation here and is invalid as it does not allow service in line with the statutory requirements. 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 11 February 2009, namely Wednesday 25 February 2009, not the 23 February 2009 as stated in the Default notice. 16. The Claimant has failed to provide Proof of service of the Default Notice as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxxx County Court. 17. As the Claimant has failed to provide Proof of Service as ordered. Therefore it must be further assumed that the rectify date be even later. 18. Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 10 days for compliance not 14 days as required. 19. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Default Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, in this judgment Kennedy LJ states inter alia : 20. Therefore, it would be the respondents’ position that the Claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective. This 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) 21. The Claimant has only just paid my costs as ordered to be paid within 14 days by District Judge xxx on the 12th May 2010. I received these costs on 25 August 2010. 22 The Claimant claims within their Witness Statement (point 8) that they complied with the order made by District Judge xxx dated 12 May 2010 on the 9th June 2010. They have attached exhibit xxx6 a copy of the service letter sent to the Defendant. This exhibit also includes a copy letter addressed to the Court. 23. Referring to the above Court order and the Claimants Witness Statement point 8, neither the Court nor myself have received a Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termionation Notices) Regulations 1983 (SI 1983/1561) as amended, together with proof of Service as Ordered by District Judge xxx dated 12 May 2010. 24. Referring to the Court order made by District Judge xxx dated 12 May 2010 and the Claimants Witness Statement point 8, neither the Court nor myself have received a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’. 25. Referring to the Court order made by District Judge xxx dated 12 May 2010 and the Claimants Witness Statement point 8, neither the Court nor myself have received; Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925 as ordered. 26 In point 9 of the Claimants Witness Statement, the Claimant claims they complied with the Court order made by District Judge xxx dated 12 May 2010 and have exhibited a copy of service letter exhibited xxx7 dated 18th May 2010. Within this letter they refer to a cheque for £80.00 26. In point 10 of the Claimants Witness Statement, the Claimant claims that they; ‘received the said cheque of £80.00 back from the PO BOX address provided by its agent from the hearing on the 12th May 2010’. This PO BOX was incorrect for the Defendant. 27. In the Past I have written to the Claimant, the correspondence address has been clear 28. The Claimant states on their Witness Statement point 11; ‘ On 20th August 2010 the Claimant sent the Defendant all documents they were ordered to provide in the order dated 12th May 2010 along with the cheque of £80.00 to his correct PO BOX address. There is now exhibited hereto marked xx8, a copy of the service letter sent to the Defendant.’ 28. I did eventually receive on the 25 August 2010 a cheque for £80.00 this was not within the 14 days as per the Court order made by District Judge xxx dated 12 May 2010. As per the order made by District Judge xxx dated 12 May 2010 I did not receive; A legible copy of the credit agreement that complies with the Consumer Credit Act 1974 and all subsequent regulations. A Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termionation Notices) Regulations 1983 (SI 1983/1561) as amended. Proof of Service of the Default Notice Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925 A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’ 29..I note the claimant at point 11 of their witness Statement states ‘On 20th August 2010 the Claimant sent the Defendant all documents they were ordered to provide in the order dated 12th May 2010 along with the cheque of £80.00 to his correct PO BOX Address. There is now exhibited hereto marked xxx8 a copy of the service letter sent to the Defendant. 30 . I received a copy of the letter dated 20 August 2010. The Claimants state they sent the cheque and documents on the 20th August 2010 with a cheque. The cheque was dated 23 Aug 2010this is 3 days after the alleged date of sending. . (Exhibit DS1) 31. As per the order made by District Judge xxx dated 12 May 2010, yet again I did not receive within the letter dated 20th August 2010; A legible copy of the credit agreement that complies with the Consumer Credit Act 1974 and all subsequent regulations. A Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termionation Notices) Regulations 1983 (SI 1983/1561) as amended. Proof of Service of the Default Notice Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925 A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’ The courts power of enforcement 32. With regards to xxx1 these are not the Terms and Conditions applicable to the original Application I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3 which states: Where a claim is based upon a written Agreement: (1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing If the court is not minded to strike out the claimant’s statement of case, the defendant respectfully requests that the court orders the claimant to produce documentation in support of it case that complies with the Consumer Credit Act 1974, the Consumer Credit (Agreements) Regulations 1983, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, the Civil Evidence Act 1995 and CPR Practice Direction 16. I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable. 33. With regards to xxx2 attached to Claimants Witness Statement the claimant has also only disclosed statements from 2008. My statutory rights therefore in my CPR 31.14 request (exhibit Miss D Screet1) has not been complied with. A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case will be required. 34. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence. 35. I therefore request that the court do dismiss the Claim. I believe that the facts stated in this witness statement are true. Signed Dated Any urgent comments welcome... I've only got a few hours to put this Witness Statement in. I am very tired 45 minutes sleep!!! Kind regards, PL
  14. Thanks Car and Pt for your help! I’ve not even had that hour yet! I’m now flagging and will sleep in a minute! Pt; ‘I'll unapprove all but the latest one, so folks don't get confused’. Now I’m confused what do you mean? Point 8; for reference pureposes on CAG I have an agreement exactly like Howard Cohen/CLFinance V littlebert Virgin MBNA Agreement on CAG. November 2004 The agreement supplied is blurred, The Prescribed terms are on the back, of the signature side, there is nothing linking the two and you can’t read some of the terms. Point 9. The T & C’s look so totally different it’s mad! The page layout, font size, type etc are soo different! I have a statement pre 2008 that shows a charge of £25.00 the new MBNA terms and conditions they have added as part of their agreement only show £12.00. PT and Car I take on board the simplicity part. I’ll amend in an hour I really do need to sleep! Wilson wasn’t in Defence so I’ll leave in? In the order by the Judges it specifies’ Copies of the Credit Agreement and any documents referred to within it which complies with the Consumer Credit Act and all subsequent regulations, which the claimant seeks to rely upon. The original documents to be bought to the hearing’ How do I insist that the original agreement is brought to the hearing. Is this possible in the Witness Statement? Incedentally; When I sent in my original cca request I notified MBNA that my New address was my PO BOX and I put the account in dispute! They ignored this and the default notice and DOA etc supplied does not have that address on. How can I introduce this into my WS/ Brain frazzled. Thanks again. going for 33 winks! Kind regards, PL
  15. Witness Statement of Miss D Screet 08 September 2010 Re Hearing XXXX 22 September 2010 In the XXXXXX County Court Claim Number: XXXXXXX Between: CL Finance (Claimant) -And- Miss D Screet (Defendant) I, XXXX of XXXXX, XXXXXXX, being the Defendant, am a litigant in person in this case. 1. I make this Witness Statement in support of my defence against the Claimants claim against me. 2. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests. 3. There is now produced and shown to me a bundle of documents marked CL Finance1. This bundle contains the Claimants exhibits xxx1, xxx2, xxx3, xxx4, xxx5, xxx6, xxx7, xxxx8 Credit Agreement 4. The applicant has served a copy of the agreement referred to as exhibit xxx1 in the Claimants Witness Statement. The claim is based upon this agreement. 5. The claimant has not filed a legible copy of the credit agreement that complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered by Order made by District Judge xxx made on 28 February 2010 and yet again by District Judge xxxx on 18 May 2010 at xxxx County Court. 6. The agreement referred to as their exhibit xxx1 appears to be in many parts. 7.. Part is illegible, and appears to be a photocopy. 8. I believe that the document fails to comply with Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) 2 Legibility of notices and copy documents and wording of prescribed Forms (1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the background medium upon which the information is displayed. 9. In an attempt to mislead and confuse both myself and the court, the Claimants have also supplied under their exhibit xxx1 some later copies of MBNA’s terms and conditions, these are clearly not related to the rest of the agreement supplied. They are of a different font, size and style, the terms are not contained within the four corners of a signed agreement, nor is there any link in the agreement to those additional terms and conditions. This credit agreement is therefore materially defective. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed. In Wilson and another v Hurstanger Ltd (2007) it was stated; “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”. Statement of Account 10. As per the Order made by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxx County Court; The Claimant has failed to supply ‘A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’. 11. The documents filed with the court by the Claimant and referred to as xxx2 included no more than the same incomplete set of copy statements previously disclosed by the Claimant. The statements supplied commence in 2008 with a carried forward balance. The claimant has not supplied strict proof of all sums claimed. Notice of Assignment 12. No Notice of Assignment has been provided as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxx County Court; Default Notice 13. The Consumer Credit Act 1974 s87 & 88 together with Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. (2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain- (a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974; (b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and © statements in the form specified in paragraphs 4, 5, 7 [8A] and 9 to 11 of that Schedule 10. At schedule 2 Para 3 of the regulations it states the following: Details of breach of agreement and action required to remedy, or pay compensation for, the breach… 3 a specification of: - (a) the provision of the agreement alleged to have been breached; and (b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either © if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or (d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid. 14. The Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post states: 2. Practice Direction Service of Documents - First and Second Class Mail "With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore. 1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post. 2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:- (a) in the case of first class mail, on the second working day after posting; (b) in the case of second class mail, on the fourth working day after posting. "Working days" are Monday to Friday, excluding any bank holiday. 3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used. 15. The Claimant refers to a Default Notice within their Witness Statement, their exhibit xxx3. This Default Notice is dated 6 February 2009 (Friday). 16. The amount of arrears stated in the Default Notice has not been substantiated as the Claimant has failed to Supply A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case as ordered 17. The copy Default Notice referred to by the Claimant as xxx3 is incorrect as it does not comply with state legislation here and is invalid as it does not allow service in line with the statutory requirements. 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 11 February 2009, namely Wednesday 25 February 2009, not the 23 February 2009 as stated in the Default notice. 18. The Claimant has failed to provide Proof of service of the Default Notice as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxxx County Court. 19. As the Claimant has failed to provide Proof of Service as ordered. Therefore it must be further assumed that the rectify date be even later. 20. Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 10 days for compliance not 14 days as required. 21. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Default Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, in this judgment Kennedy LJ states inter alia : This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'. 22. Therefore, it would be the respondents’ position that the Claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective. This 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) 23. Referring to the Claimants Witness Statement; Point 9 through to 11; The Claimant has only just paid my costs. 24 The Claimant claims within their Witness Statement (point 8) that they sent my costs on the 18th May 2010 with the letter dated 18th May 2010 and referred to as xxx7. 25. My correct PO BOX address was notified to the Original creditor MBNA in 2008. 26. The Claimant claims within their Witness Statement (point 10) that they; ‘received the said cheque of £80.00 back from the address provided by its agent’. 27. The Claimant claims Witness Statement (point 11); ‘ On 20th August 2010 the Claimant sent the Defendant all documents they were ordered to provide in the order dated 12th May 2010 along with the cheque of £80.00 to his correct PO BOX address. There is now exhibited hereto marked xx8, a copy of the service letter sent to the Defendant.’ 28. I did not receive; A legible copy of the agreement A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case as ordered. Proof of service of Notice of Assignment as ordered. Proof of Service of the Default Notice 29. I did receive a copy of the letter dated 20 August 2010 and a cheque dated 23 Aug 2010. Referring to points 8 and 11 of the Witness Statement; the cheque was not dated the 20th of August or dated 9th June 2010. I believe the Claimant to be deliberately misleading the Court. See Cheque and copy of letter exhibited hereto marked DS1. The courts power of enforcement 30. With regards to xxx1 these are not the Terms and Conditions applicable to the original Application I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3 which states: Where a claim is based upon a written Agreement: (1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing If the court is not minded to strike out the claimant’s statement of case, the defendant respectfully requests that the court orders the claimant to produce documentation in support of it case that complies with the Consumer Credit Act 1974, the Consumer Credit (Agreements) Regulations 1983, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, the Civil Evidence Act 1995 and CPR Practice Direction 16. I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable. 31. With regards to xxx2 attached to Claimants Witness Statement the claimant has also only disclosed statements from 2008. My statutory rights therefore in my CPR 31.14 request (exhibit Miss D Screet1) has not been complied with. A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case will be required. 33. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence. 34. I therefore request that the court do dismiss the Claim. I believe that the facts stated in this witness statement are true. Signed Dated It is now 6’o’ clock in the morning and I’ve been up all night preparing this Witness Statement. I’m now going to bed for an hour. I would appreciate any comments or opinions on this Witness Statement. This needs to be in today! Thank you in advance! ZZZ Pigland
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