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Stressed150

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  1. Had the hearing for this case this am, to which the claimants rep also attended.

    Exchanged a few words the rep before being ushered into the court,

    to the effect of, neither party had anything further to add by way of evidence,

    and that we had each read the others WS so knew what to expect.....

     

    After being ushered into the court, the judge began by grilling the claimants representative on notices of assignment,

    as it appeared the debt had been assigned to several different companies,

     

     

    there was one in particular the judge highlighted and queried whom the company was, (CAI finance),

    and where the hell it had come from,

    the claimants rep went onto advise the debt was assigned to CAI and then re-assigned to first credit,

     

     

    at which point the judge queried the date at which this happened as it initially appeared the claim had been issued under the incorrect trading name

    (the claimants rep was squirming at this point),

     

     

    however after much flicking through the paperwork, he was able to locate the notice of re-assignement, back to first credit,

    and the judge was satisfied the claim had infact been issued under the correct name.

     

    The judge then went on to the issue with the addresses,

    as the claimant had previously sent all notices of assignment to an address which is not mine,

    and referred to this in the WS for their summary judgement,

     

     

    however the claimant was quick to point out that they had mis-traced an address and that this was rectified at a later date,

    and that notices had been served at the correct address,

     

     

    I mentioned that I do not recall ever receiving notices at my current address,

    however the judge said this was irrelevant as the law states that as long as notices have been served to the correct address

    it makes no odds, as to whether i recieved them or not?? Needless to say that I was baffled by this.

     

    Moving on, the judge asked me to confirm my current address, which I did,

    he then looked at the application form (which the judge referred to as the agreement)

    and checked that this address was the same as my current,

    and asked if it was my signature, which I confirmed.

     

     

    He then went on to ask me, if I had taken out a credit card with Halifax, now or in the past, to which I said yes.

    I then highlighted that I was not denying, that I had taken out credit,

    rather I was disputing how the claimant is able to bring enforcement action against me

    based on the documents it is relying on, as the application and terms and conditions do not correspond,

     

     

    I highlighted that late charges which appear on the statement do not correspond to those in the T and C supplied,

    to which the claimant was quick to point out a clause in the T and C stating the creditor reserved the right to vary the amount of charges.

     

     

    The judge seemed to agree with this, or at least he didn't disagree,

    however, he seemed not to give a toss about prescribed terms etc,

    as he said that I had no defence if I was arguing that the claimant did not have a valid agreement,

    as it was evident that I had a credit card, and I had used it to obtain credit.

     

    None the less, he said he would be chrystalising the amount claimed as per the default notice, as it was defective,

    and the claimant had no right to anything above that amount.

     

     

    I felt gutted at this point, as throughout, I felt like a bystander, while the claimant and the judge exchanged legal talk

    which seemed to be going over my head, needless to say though the judge would stop every now

    and then to make sure I was clear on what was happening. I

     

     

    did at this point want to request the amount be lowered to the arrears outstanding on the default notice

    and not the balance outstanding (as I had read on here sometime ago that there is a clause to this effect???)

    However, as I had no idea which law/statute/act to quote for this,

    I kept my mouth shut so as to save myself the embarasssment.

     

    In conclusion, the judge was very sympathetic, and said that he could understand my confusion in all this as he himself was confused

    and that he was very well read on consumer credit law.

     

     

    He did say that he did not want to grant a CCJ in this case, and asked me how and I think at one point what amount I can afford to pay back,

    whilst I dont recall giving an amount, (was this a lifeline offered by the judge??)

    I did say that Id need atleast until the end of the next month to make payment, to which the claimant objected and said its ususaly 28 days,

    however, the judge ignored him, and said fine.

     

     

    In hindsght I should have stated an amount much lower??????

     

     

    I found the experience overwhelming, therefore was not quick to think on my feet to say the least, and am now kicking myself.

    The judge then said that IF the claim was to return to court, he would like it to come before him,

    as he had read through all the paperwork, the claimant for some reason appeared to object to this,

    I can only assume that this was because the judge appeared somewhat sympathetic towards me??

     

     

    At one point the judge was about to issue a Tomlin Order,

    however he decided that this would disadvantage the claimant should it be breached???

    Instead he has ordedered that I pay the amount agreed and costs, and that he would have the claim struck out, one month later.

     

     

    Once again the claimant appeared to dispute this and said its ususally three months, which the judge completely ignored.

     

    All in all its bittersweet, I have to pay, but I won't have CCJ against me,

    I'm not sure this counts as a win, as when I look back, I wish I had spoken up when the judge asked me

    what I can afford to pay in the hope this would have reduced the amount.

     

     

    But the main thing for me is, no CCJ, and that is something im grateful for,

    and to be honest Im glad the whole thing is over.

     

    Many thanks to Andy for all your help through this, I am eternally grateful for your time and effort.

     

    Also, I completely forgot to check at the court whether I was supposed to wait around for any documents etc,

    or do I just wait for them to come through the post.

    I pretty much walked out as soon as the hearing was over

  2. Hi can anyone please advise if I need to amend my defence?

    The only defence I have submitted is online, the says the claimants poc are cafe abd generic in nature (I believe it's one of Andys templates).

     

    Also, feeling extremely nervous about this as day is getting closer, I absolutely can not afford to have a CCJ against my name under any circumstances, therefore if the claimant wins the case, can I dispute the fact that the account is made up of unlawful charges and PPI? This adds to over half the balance on the account.

     

     

    Thank you

  3. Is it appropriate in my case to request the claim be struck out based on inconsistent filing of evidence by claimant?

     

    The above is my final draft, just need a final opinion, before it is bound and sent of special delivery today.

     

    This will now reach the court and claimant one day late! Im really worrried!!! Whats the worst case scenario? In court on 24/07

     

    Many Thanks for all your help

     

    Not feeling confident at all, just need the once over before I send this off today, many thanks

     

    Ok, off to send, just for clarification, part C I have added, show how the claimant,. has a legal right to issue a claim under equity or statute

     

    Sent. Fingers crossed and hoping and praying.

    Do u need to amend my defence which was submitted to MCOL?

    Also, didn't include anything about claiming costs, have to take day off work to go to the hearing is this worth mentioning at the hearing even though it's not included in WS?

  4. IN THE COUNTY COURT AT XXXX CLAIM NO XXXXX

     

    BETWEEN

    1st CREDIT (FINANCE) LIMITED

    and

     

    Witness Statement of xxxx

    I xxxxxx, xxxxx the defendant will state as follows:

    1.The claimant claims that it has now supplied me with the relevant documentation required and complied with its duty under section 78 of the consumer credit act 1974. In doing so, the claimant relies on the document attached at page. to which the claimant refers to as the signed agreement, in order to bring enforcement action against the defendant.

     

     

     

    2.I refer to the text at the top of this document, titled “Credit Card Application”, and draw your attention to the date of the said agreement xx/xx/2002, therefore placing the agreement in the pre April 2007 category. Section 127 (3) Consumer Credit Act 1974 “ The court shall not make an enforcement order under section 65(1) if section 61 (1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section (60) (1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

    3. I further draw your attention, to the legibility of this application. I refer to section 61(1) of the consumer credit act “ A regulated agreement is not properly executed unless:

    a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement other then implied terms and the document is when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

     

    4. The document which the claimant relies upon to bring enforcement action does not contain the required terms under the consumer credit agreements, and consequently is unenforceable.

     

     

    5. In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement, I refer to point on pages and of the terms and conditions sheet attached to the application form which the claimant claims was signed on xx/xx/2002

    “ What happens if you break the agreement

    If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

    6. I refer to page of the enclosed statements as part of the claimants claim; titled statement date xx/xx/2006. In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page a further late fee of £25.00 dated xx/xx/2006.

    7. I refer to page of the claimants witness statement (For the avoidance of doubt this is page of the defendants exhibits) in particular point . “ A copy of the signed agreement is at page 1 and the terms and conditions applicable at the time are at pages 2 to 6.”

    8. It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened. I refer to judge Waksman judgement in Carey v HSBC, paragraph 234(4) “If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms”.

    9 .On xx/xx/2014 the claimant filed a claim for summary judgement, a hearing date for which was allocated on xx/xx/2014. The claimants witness statement for summary judgement is enclosed, pages to . Following representation of my witness statement, the claimant wrote to me advising me that in light of my evidence it would withdraw its application for summary judgement, I refer to page xx. On xx/xx/2014 I received a letter from Romford County Court advising me the claim had been allocated to the small claims track, and that a hearing had infact taken place on xx/xx/2014 before District Judge Dodsworth sitting at 2a Oaklands Avenue Romford Essex (Page ), and therefore highlighting my failure to attend the hearing, despite being given notice (Page 39). I can only conclude that this was a deliberate attempt in deceiving me to believe, that a hearing would not take place.

    10. The claimant also contends that it had mistraced an address to which it claims, all notices of assignment were posted, and that this has now been rectified. I refer to the claimants witness statement for summary judgement from pages to . The address to which the letters are addressed (pages to ) clearly different to the address to which this claim relates, and to which the claimant claims “remains the defendants current address”. (Page ). May I confirm, that this has never been my address.

    11. It is denied that notices of assignment were ever received.

    12 . I refer to page which is page 2 of the claimants witness statement in support of summary judgement, and highlight the date at which the claimant claims the account was opened,(xx/xx/2001) as this is clearly different to the date quoted by the claimant in the current witness statement.

    13. The default notice attached at page , does not comply with section 88 of the consumer credit act 1974, as it does not give 14 clear days, before the account is terminated, I refer to section 88 (2) of the consumer credit act 1974

    “ A date specified under subsection (1) must not be less then 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87 (1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed”.

    14. Unlawful, charges and interest continued to be added to the account after it had been terminated, I refer to pages x and x of the enclosed statements by the claimant.

    15. Infact, it is my belief that the claimant, was not in receipt, of the default notice, prior to my furnishing, this as an exhibit as part of my witness statement, as at pages to , the claimant encloses a screenshot, with names and amounts blanked out, and only produces any default notice after the defendant furnished it as part of her witness statement,

    16. To date the claimant has failed to provide a valid agreement, and has demonstrated gross inconsistencies in submission of its paperwork by way of evidence, therefore, with the courts permission, the claimant is put to strict proof:

    A. Show and disclose how the defendant has entered into an agreement

    B. Show and disclose how the claimant has reached the amount claimed for

    C.

  5. The final, final, final draft, which I need to post today, to reach the court and the claimant today somehow, otheriwse I risk the claim being struck out? If I could get the once over on this befire posting, that would be fantastic.Also just to confirm, the debt does not become statute barred if a claim has been issued before the date it is due to become statute barred? For example, this debt would have been statute barred as of feb 2015, however MCOL claim, was issued in 11/2014.

     

     

     

    IN THE COUNTY COURT AT CLAIM NO XXXXX

     

    BETWEEN

    1st CREDIT (FINANCE) LIMITED

    and

    XXXX XXXX

     

    Witness Statement of XXXX XXXX

    I xxxx xxxx, of xxxxxxxxxxxx, the defendant will state as follows:

    1.The claimant claims that it has now supplied me with the relevant documentation required and complied with its duty under section 78 of the consumer credit act 1974. In doing so, the claimant relies on the document attached at page1. to which the claimant refers to as the signed agreement.

     

     

    2.I refer to the text at the top of this document, titled “Credit Card Application”. I further draw your attention, to the legibility of this application. I refer to section 61(1) of the consumer credit act “ A regulated agreement is not properly executed unless:

     

     

    a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement other then implied terms and the document is when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

     

     

    3. The document which the claimant relies upon to bring enforcement action does not contain the required terms under the consumer credit agreements, and consequently is unenforceable.

     

     

    4. I further request the claimant to evidence where in the document it meets the requirement under section 65(1) of the consumer credit Act 1974 “A term stating the credit limit or the manner in which it will be determined or that there is no credit limit”.

     

     

    5. In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement, I refer to point x of page x of the terms and conditions attached to the application form which the claimant claims was signed on xx/xx/2002

     

    “ What happens if you break the agreement

    If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

     

     

    6. I refer to page x of the enclosed statements as part of the claimants claim; titled statement date xx/xx/2006. In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page x a further late fee of £25.00 dated xx/xx/2006.

     

     

    7. I refer to page x of the claimants witness statement in particular point x “ A copy of the signed agreement is at page x and the terms and conditions applicable at the time are at pages x to x.”

     

     

    8. It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened. I refer to judge Waksman judgement in Carey v HSBC, paragraph 234(4) “If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms”.

     

     

    9 .On xx/xx/xx the claimant filed a claim for summary judgement, the witness statement for which is enclosed, pages x to x. Following representation of my witness statement, the claimant wrote to me advising me that in light of my evidence it would withdraw its application for summary judgement, I refer to page x. On xx/xx/xx I received a letter from Romford County Court advising me the claim had been allocated to the small claims track, and that a hearing had infact taken place on xx/xx/xx before district judge xxxxxx, and therefore highlighting my failure to attend the hearing, despite being given notice (page x).

     

     

    10. The claimant also contends that it had mistraced an address to which it claims, all notices of assignment were posted, and that this has now been rectified, I refer to the claimants witness statement for summary judgement from pages xx to xx. The address to which the letters are addressed (page x to x) clearly different to the address to which this claim relates, and to which the claimant claims “remains the defendants current address”. (Page x).

     

     

    11. It is denied that notices of assignment were ever received.

     

     

    12 . I refer to page x of the claimants witness statement in support of summary judgement, and highlight the date at which the claimant claims the account was opened, as this is clearly different to the date quoted in this witness statement.

     

     

    13. The default notice attached at page x, does not comply with section 88 of the consumer credit act 1974, as it does not give 14 clear days, before the account is terminated, I refer to section 88 (2) of the consumer credit act 1974

     

    “ A date specified under subsection (1) must not be less then 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87 (1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed”.

     

     

    14. Unlawful, charges and interest continued to be added to the account after it had been terminated, I refer to pages x and x of the enclosed statements by the claimant.

     

     

    15. Infact, it is my belief that the claimant, was not in receipt, of the default notice, prior to my furnishing, this as an exhibit as part of my witness statement, as at page x , the claimant encloses a screenshot, with names and amounts blanked out, and only produces any default notice after the defendant furnished it as part of her witness statement,

     

     

    16. To date the claimant has failed to provide a valid agreement, therefore, with the courts permission, the claimant is put to strict proof:

     

     

    A. Show and disclose how the defendant has entered into an agreement

    B. Show and disclose how the claimant has reached the amount claimed for

    C. Show and disclose how the claimant is entitled to any of the amount and costs it is claiming.

     

    Statement of Truth

    The defendant believes that the facts stated in this defence are true

     

    Signed

  6. Final, final draft, if someone I could get tyhe once over on this that would be amazing, also, if I refer to an exhibit which is enclosed my bundle, however was originally provided by the claimant for example a statement, and is therefore referred to as " I refer to the statement enclosed by the claimant" Do I refer to their page x or my own page x?

     

     

     

    Many thanks in advance

     

     

     

    IN THE COUNTY COURT AT CLAIM NO xxxxx

     

    BETWEEN

    1st CREDIT (FINANCE) LIMITED

    and

    xxxx xxxx

     

    Witness Statement of xxxx xxxx

    I xxxx xxxx, of xxxxxxxxxxxxxxxx, the defendant will state as follows:

    1.The claimant claims that it has now supplied me with the relevant documentation required and complied with its duty under section 78 of the consumer credit act 1974. In doing so, the claimant relies on the document attached at page X to which the claimant refers to as the signed agreement.

    2.I refer to the text at the top of this document, titled “Credit Card Application”. I further draw your attention, to the legibility of this application. I refer to section 61(1) of the consumer credit act “ A regulated agreement is not properly executed unless:

    a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement other then implied terms and the document is when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

    3. The document which the claimant relies upon to bring enforcement action does not contain the required terms under the consumer credit agreements, and consequently is unenforceable.

    4. I further request the claimant to evidence where in the document it meets the requirement under section 65(1) of the consumer credit Act 1974 “A term stating the credit limit or the manner in which it will be determined or that there is no credit limit”.

    5. In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement, I refer to point x of page x of the terms and conditions attached to the application form which the claimant claims was signed on xx/xx/2002

    “ What happens if you break the agreement

    If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

    6. I refer to page x of the enclosed statements as part of the claimants claim; titled statement date xx/xx/2006. In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page x a further late fee of £25.00 dated xx/xx/2006.

    7. I refer to page x of the claimants witness statement in particular point x “ A copy of the signed agreement is at page x and the terms and conditions applicable at the time are at pages x to x.”

    8. It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened. I refer to judge Waksman judgement in Carey v HSBC, paragraph 234(4) “If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms”.

    9 .On xx/xx/xx the claimant filed a claim for summary judgement, following representation of my witness statement, the claimant wrote to me advising me that in light of my evidence it would withdraw its application for summary judgement, I refer to page x. On xx/xx/xx I received a letter from Romford County Court advising me the claim had been allocated to the small claims track, and that a hearing had infact taken place on xx/xx/xx before district judge xxxxxx, and therefore highlighting my failure to attend the hearing, despite being given notice.

    10. The claimant also contends that it had mistraced an address to which it claims, all notices of assignment were posted, and that this has now been rectified, I refer to the claimants witness statement for summary judgement from pages xx to xx. The address to which the letters are addressed, clearly different to the address to which this claim relates, and to which the claimant claims “remains the defendants current address”.

    11. It is denied that notices of assignment were ever received.

    12 . I refer to page x of the claimants witness statement in support of summary judgement, and highlight the date at which the claimant claims the account was opened, as this is clearly different to the date quoted in this witness statement.

    13. The default notice attached at page x, does not comply with section 88 of the consumer credit act 1974, as it does not give 14 clear days, before the account is terminated, I refer to section 88 (2) of the consumer credit act 1974

    “ A date specified under subsection (1) must not be less then 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87 (1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed”.

    14. Unlawful, charges and interest continued to be added to the account after it had been terminated, I refer to pages x and x of the enclosed statements by the claimant.

    15. To date the claimant has failed to provide a valid agreement, therefore, with the courts permission, the claimant is put to strict proof:

    A. Show and disclose how the defendant has entered into an agreement

    B. Show and disclose how the claimant has reached the amount claimed for

    C. Show and disclose how the claimant is entitled to any of the amount and costs it is claiming.

     

    Statement of Truth

    The defendant believes that the facts stated in this defence are true

     

    Signed

  7. I'm only hand writing the page numbers on the documents to be used for evidence, as I don't have anyway to type up numbers on photocopied pages.

     

    The default notice as per page x does not comply with section 88 of the consumer credit act. further to this as per pages x to x of statements enclosed by the claimant it is evident that unlawful charges and interest continued to be added to the account after it had been terminated.

     

    Andy, do you think the above is sufficient? Also do you think the draft WS including this paragraph would be ok?

     

    Any further suggestions would be much appreciated

     

    Many thanks

  8. OK, so this is my final draft, Id like to egt this sent off tomorrow, or same day on Monday, as in court on 24th July. I feel I should mention about the default notice here, however, not sure what exactly to say, other then it does not meet section 88 of consumer credit act, and was terminated one day before, however, as the claimant points out, the account was not infact terminated by the OC as they continued to add charges and interst after termination of the account, which was later rectified.....

     

    Many Thanks in advance

  9. IN THE COUNTY COURT AT xxxxx CLAIM NO xxxxxxx

     

     

    BETWEEN

     

     

    1st CREDIT (FINANCE) LIMITED

     

     

    and

     

     

    xxxxx

     

     

     

     

    Witness Statement of xxx

     

    I xxxxx, of xxxxxxxxxxxxxxxxxx, the defendant will state as follows:

     

    1.The claimant claims that it has now supplied me with the relevant documentation required and complied with its duty under section 78 of the consumer credit act 1974. In doing so, the claimant relies on the document attached at page X to which the claimant refers to as the signed agreement.

     

    2.I refer to the text at the top of this document, titled “Credit Card Application”. I further draw your attention, to the legibility of this application. I refer to section 61(1) of the consumer credit act “ A regulated agreement is not properly executed unless:

    a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement other then implied terms and the document is when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

     

    3. The document which the claimant relies upon to bring enforcement action does not contain the required terms under the consumer credit agreements, and consequently is unenforceable.

     

    4. I further request the claimant to evidence where in the document it meets the requirement under section 65(1) of the consumer credit Act 1974 “A term stating the credit limit or the manner in which it will be determined or that there is no credit limit”.

     

    5. In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement, I refer to point x of page x of the terms and conditions attached to the application form which the claimant claims was signed on 26/03/2002

     

    “ What happens if you break the agreement

    If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

     

    6. I refer to page x of the enclosed statements as part of the claimants claim; titled statement date xx/xx/2006. In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page x a further late fee of £25.00 dated xx/xx/2006.

     

    7. I refer to page x of the claimants witness statement in particular point x “ A copy of the signed agreement is at page x and the terms and conditions applicable at the time are at pages x to x.”

     

    8. It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened. I refer to judge Waksman judgement in Carey v HSBC, paragraph 234(4) “If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms”.

     

    9 .On xx/xx/xx the claimant filed a claim for summary judgement, following representation of my witness statement, the claimant wrote to me advising me that in light of my evidence it would withdraw its application for summary judgement, I refer to page x. On xx/xx/xx I received a letter from Romford County Court advising me the claim had been allocated to the small claims track, and that a hearing had infact taken place on xx/xx/xx before district judge xxxxxx, and therefore highlighting my failure to attend the hearing, despite being given notice.

     

    10. The claimant also contends that it had mistraced an address to which it claims, all notices of assignment were posted, and that this has now been rectified, I refer to the claimants witness statement for summary judgement from pages xx to xx. The address to which the letters are addressed, clearly different to the address to which this claim relates, and to which the claimant claims “remains the defendants current address”.

     

    11. It is denied that notices of assignment were ever received.

     

    12 . I refer to page x of the claimants witness statement in support of summary judgement, and highlight the date at which the claimant claims the account was opened, as this is clearly different to the date quoted in this witness statement.

     

    13. To date the claimant has failed to provide a valid agreement, therefore, with the courts permission, the claimant is put to strict proof:

     

    A. Show and disclose how the defendant has entered into an agreement

    B. Show and disclose how the claimant has reached the amount claimed for

    C. Prove that notices of assignment were ever sent to the defendant

     

    14.. In the circumstances, until such time that the claimant can comply and evidence the above pursuant to the CCA1974 I invite the Court to deny the claimants claim.

     

    Statement of Truth

    The defendant believes that the facts stated in this Witness Statement are true

     

    Signed

  10. Ok, here's what I have so far,

    I realy dont know if Im on the right tracks with this,

    also I think I shot myself in the foot, as at summary judgement

    the cliamant had submitted a computer screen shot of alleged default notcie with names dates and amounts blanked out,

     

    I then cleverly decided that I would submit the actual default notice as part of my defence as this was not meeitng section 88 of the consumer credit act,

    and account was terminated one day short

    . Surprise, surpirse, the claimant has now submitted this defaukt notice as part of witness statement.

     

    The claimant claims that it has now supplied me with the relevant documentation required and complied with its duty under section 78 of the consumer credit act 1974.

    In doing so, the claimant relies on the document attached at page X to which the claimant refers to as the signed agreement.

     

    I refer to the text at the top of this document, titled “Credit Card Application”.

    I further draw your attention, to the legibility of this application.

    I refer to section 61(1) of the consumer credit act “ A regulated agreement is not properly executed unless:

    a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement other then implied terms and the document is when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

     

    I further request the claimant to evidence where in the document it meets the requirement under section 65(1) of the consumer credit Act 1974

    A term stating the credit limit or the manner in which it will be determined or that there is no credit limit”.

     

    In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement

    , I refer to point x of page x of the terms and conditions attached to the application form which the claimant claims was signed on xx/xx/2002

    “ What happens if you break the agreement

    If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

     

    I refer to page x of the enclosed statements as part of the claimants claim; titled statement date xx/xx/2006. In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page x a further late fee of £25.00 dated xx/xx/2006.

    It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened.

     

    On xx/xx/xx the claimant filed a claim for summary judgement,

    following representation of my witness statement, the claimant wrote to me advising me that in light of my evidence it would withdraw its application for summary judgement,

     

     

    I refer to page x. On xx/xx/xx I received a letter from Romford County Court advising me the claim had been allocated to the small claims track,

    and that a hearing had infact taken place on xx/xx/xx before district judge xxxxxx,

    and therefore highlighting my failure to attend the hearing, despite being given notice.

     

    The claimant also contends that it had mistraced an address to which it claims, all notices of assignment were posted, and that this has now been rectified,

    I refer to the claimants witness satemet for summary judgement from pages xx to xx.

    In particular I refer to page x of the claimants witness statement in support of summary judgement,

    and highlight the date at which the claimant claims the account was opened, as this is clearly different to the date quoted in this witness statement.

     

    Also this section at the appropriate part.....

     

    In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement,

    I refer to point x of page x of the terms and conditions attached to the application form which the claimant claims was signed on

    “ What happens if you break the agreement

    If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

     

    I refer to page x of the enclosed witness statements as part of the claimants claim; titled statement date xx/xx/2006.

    In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page x a further late fee of £25.00 dated xx/xx/2006.

     

    I refer to page x of the claimants witness statement in particular point x

    “ A copy of the signed agreement is at page x and the terms and conditions applicable at the time are at pages x to x.”

     

    It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened.

     

    Any guidance please?

     

    I need to complete the final draft of this today, as I need to file by Monday at the latest, any further guidance on this will be much appreciated just to give me an indication as to whether I'm on the right tracks or not.

     

    Many thanks

     

    Also half the account is made up of charges and ppi should the judge rule in favour of the claimant am I still able to dispute these charges and ppi etc?

  11. Claimants Witness statement

     

    The claim relates to a halifax credit card ref xxxxx. On xx/xx/xx the defendant applied for and obtained a credit card. a copy of the signed agreeemnt is at page x and the termsn and conditions applicable at the time are at pagesx to x. I refer to the text above the defendants signatire which states " This is a credit card agreement regulated by the consumer credit act 1974. Sign it only if you want to be legally bound by its term".

     

    Pursuant to the HBOS reorganisation act 2006, Bank of scotland plc acquired the assets and liabilities of halifax plc. The act came into effect on xx/xx/2007. Attched at pages x to x are the terms and conditions between the defendant and bos current at the date of default. at page xx I attatch the London gazette notice dated xx/xx/2007 confirming the transfer.

     

    Attached hereto at pages xx to xx are the available statements of account, from xx/xx/xx to xx/xx/xx. It is evident that the defendant used the card to purchse goods and services. She also used the card to obtain cash advances.

     

    The last payment received on xx/xx/xx in the sum of xx, page xx. Thereafter ni further paymens were recieved and charges applied in respect of late payment/overlimit fee/letter fees and interest. The last staement issued was on xx/xx/xxx and the account then passed to recoveries as evidecnt fron the tranbsaction hisotry at page xx because no statements are issued once the account is closed. The balance owed on xx/xx/xx was xxxx.

     

    On xx/xx/xx a default notice was issued. At page xx is the computer screen entry wuth the credit card number xxxxxxxxxxxxxx and the balance at xxxx. I rerfer to page x of the staements showing the exact balance at the date of the default,. At pages x to x is the default notice dated xx/xx/xx, putting the defendant on notice that she must pay xxxx into her account "before xx/xx/xx" being the 14 days notice required under section 88 of the consumer credt act 1984.

     

    At page x is the termination notice, dated xx/xx/xx I note that it was issued one day before the expiry day notice. I refer to the staements at pages x to x showing the account had infact not been terminated despite the termination notice. I therefore submit that defect in the termonation notice did not prejudice the defendant.

     

    ASSIGNMENTS

     

    On xx/xx/xx the debt was assigned ffrom BOS to 1st Credit finanace 5 ltd. A copy of the notice of assignment dated xx/xx/xx is at page x. The ntice was sent to xxxxxxxxxxxx. Attached at page xx to xx is the introductory letter of the same date. and also sent to the same address. For the avoidance of doubt, both documents were previously sent to an alternative address at xxxxxxxxxx on xxxx, following a mis-trace of the defendants address when the account was first assigned. I confirm that the address was corrected and all corresspondance was sent to xxxxxxx from xx/xx/xx.

     

    On xx/xx/xx 1st credit finance chnaged its name to CAI finance limited. A copy of the notice of chnage is at page x to x. Subsequently on xx/xx/xx the debt was assigned to the claimant and a copy of thr notice of assignemnt is at pagex.

     

    The claimant attempted to recover the debt from the claimant but to no avail. Attached at page x is the letter from connaught collections (a trading style of 1st credit limited) informing the defendant that the matter was being passed to walker morris solicitors foir the purposes of recivering the debt. on xx/xx/xx county court proceedings were issued at the county court business centre.

     

    DEFENCE AND PROCEEDINGS

     

    I refer to the defence dated xx/xx/xx. The defendant aserts that the particulars of claim are "vague" and that she requires proof of the claim; and that she requires disclosure documentation.

     

    At pages xx to xx is the defendants CPR 31.14 request dated xx/xx/xx. At pahes xx to xx is the claimants letter to the defendant enclosing documentation. Although CPR 31 does not apply to this claim ( because its allocated to the samll claims track). the claimant did comply with the request nonetheless by disclosing documentation within its control and possession. Followign disclosure a furtehr letter was sent on xx/xx/xx (page x) informing the defendat of the claimants intention to apply for summary judgement. On xx/xx/xx the claimant made application and a hearing was listed on xx/xx/xx.

     

    The claimnats application was based in the defence. In response to the application the defendant served a witness satement dated xx/xx/xx, raiasing new issues concerning the enforceability of the credit agreement, the validity of the default notice, and the effectiveness of the notice of assignment. A copy of the witness sattement and exhibits it at pages xx to xx. Given the new issues raised the application was withdrawn.

     

    In respect of the issues raised in the witness satement of xx/xx/xx, the claimants position is as follows:-

    a. The defendabt admots thate she "held accounts with the halifax".

    b. The signed application form at page x refers to the same terms and conditions and is executed by the defendant and the halifax plc. I refer to the case of HSBC Bank Plc V Brophy [2011] ALL ER (D) 25 (FEB) which held that by signing and retirning the application form the applicant was applying for credit and agreed to be bound by the terms and conditions to satisfy the requiremnets of section 61 of the consumer credit act 1974. The form at page x makes clear that it contained a request for credit and upon signing the defendant agreed to be legally bound by the terms.

    c. The default notice at page xx to xx is in compliance with section 88 of the consumer credit act 1974. I refer to paragraph 9 above in respect of the defect in the termination notice and confirm that the defendant has not disclosed evidence that she would have remedied the breach within the notice period.

    d. the balance of the debt is evident from the statements and the payment history at page x.

    e. The wrong notices of assigment were incorrectly referred to in the summary judgement application and the correct notices are at pages xx to xx.

    f. The claimant contends that it has complied with its duty under section 78 of the consumer credit act 1974 and in light of the case of Carey vs HSBC Bank plc and other cases [2009] EWHC 3417 (QB) by supplying true copies of the credit agreement to the defendant.

     

    CONCLUSION

     

    The defendant rasies technical arguments in order to avoid payment of the debt. She does not deny incurring the debt and/using the credit card to purchase goods or services

     

    I submit that judgement should be entered against the defendant together with fixed costs awarded as follows:

    a court issue fee £80

    b Solicitor costs £100

    c Hearing fee £110

     

    Staement of truth

    etc

    etc

  12. To my case, as I am not arguing the credit limit amount per se, however, the application they have sent me in response to CPR is indeed illegible and does not contain the credit amount, also the TandC attached on a seperate page do not relate to the account as they stipulate that late payment towards the account would be £20.00, however the attached account statements clearly indicate that fees of £25.00 were added to the account, is this worth pointing out as part of my defence/WS?

  13. the claimant has now submitted a defence so need to write mine up,

     

     

    they quote HSBC bank Plc v Brophy.

     

     

    I have just read up on that case, and it seems that it's pointless to argue that the alleged agreement is unenforceable,

    as per the HSBC bank Plc v Brophy case,

     

     

    the judge decided that the signing the application was in effect an executed agreement despite the fact that the form being signed was an application form.

     

    I'm quite concerned, I want to defend but now I don't know where to start

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