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molly2

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About molly2

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  1. Straight after the judgement was made, I appealed against the judgement, which the judge refused. He said I can apply for another judge at the same court to reconsider my right to appeal. I called the court and asked them how to do this. They referred me to the justice.gov website. I can't find anything on there stating how to appeal a refusal of right to appeal. Any ideas Andyorch ?
  2. The judge said I had to actually prove that I had used a different address to open a Lloyds account in 2003. So effectively I had to have a copy of the original agreement myself. I had an electoral register printout but the judge said that wasn't sufficient to prove that I used an address different to that on the recon to open an account in 2003. The other party said their position was that Lloyd's/Cabot had put my correct 2003 address on the recon. And the judge said the burden of proof was on me to prove otherwise.
  3. Just been to court and I lost. Judge said the burden of proof was on me to prove the recon had the wrong address and I hadn't proved it sufficiently. Judge was not too familiar with Carey Vs HSBC and the other party argued that lack of a signed agreement did not prevent enforcement of a pre 6 April 2017 agreement. I appealed but the judge refused my right to appeal. Now my only option left is to ask for reconsideration of my right to appeal.
  4. Witness statement sent. 2 weeks before court date, Mortimer have come up with another witness statement, similar to their previous one. Except now they've appended a statement of their costs. Their case (point 9.) seems to hinge upon the FCA's Consumer Credit sourcebook rule 13.1.4, a firm is able to reconstitute a copy of the agreement to satisfy a CCA 1974 Section 78 request, i.e. Carey vs HSBC. I think my witness statement refuted this point adequately and so no point in a further witness statement from me. LL CW3.pdf
  5. How about this for a new paragraph to follow paragraph 2 then ? 3. The Claimant’s solicitors letter of 22 September 2016 in Exhibit AA1 also attaches a Final Demand sent to the Defendant on 1 October 2008. This does not provide a valid termination the account as it is not headed "Notice served under Sections 76(1) and 98(1) of the CCA1974 " and it requires payment within 7 days rather than the required 14 days. Accordingly the Defendant asks the court to put the Claimant to strict proof that the account was terminated correctly under Sections 76(1) and 98(1) of the CCA1974 to allow the claimant relief.
  6. Restons provided this copy of a final demand notice - is that what you want to put them to strict proof for ? FD Final Demand.pdf
  7. Thanks Andy. Here's a draft, only points 1(type of hearing), 2 and 4(tense) and changed. I tried to change 2. to avoid inadvertently admitting a consolidated credit card debt. What do you think ? 1. I am the Defendant in this case. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief. I make this statement in support of the defence as requested in the General Form of Judgment or Order in this case dated 19 May 2017 from the County Court at such and such town. 2. The Claimant claims monies outstanding under an overdraft facility. However the Claimant’s solicitor wrote to the Defendant on 22 September 2016 referring to a further debt owed to HSBC, which HSBC is said to have ‘consolidated’ into an overdraft facility (Exhibit AA1). Accordingly, the Defendant sent a formal request pursuant to section 78 of the Consumer Credit Act 1974 to obtain documentation relating to this account. This letter from the Claimant’s solicitor, the request from the Defendant and the Claimant’s response are shown in Exhibit AA1. The court should note that the Claimant has failed to provide the information required under Section 78 (1) of the Act, and therefore Section 78(6)a applies. 3. It is admitted on receipt of the Claim Form I did request information pursuant to CPR 31.14, in particular to show how I entered into a contract with HSBC. In particular, I requested to see the overdraft facility confirmation and Terms and Conditions pursuant to section 61B of the Consumer Credit Act. 4. Given that at that stage the claim was trackless and not allocated, CPR 31.14 did apply and the Claimant was required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences. 5. Given that the Claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial. 6. I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable. 7. The Defendant in his defence asked the court to put the Claimant to strict proof to show and disclose how the Defendant has entered into an agreement. No such disclosure has been forthcoming. 8. Simply stating in their reply to the Defendant’s CPR 31.14 request that the Defendant would have been provided with a copy of the contractual Terms and Conditions at the time the overdraft facility was opened and hence we see no reason why the Defendant now requires an additional copy is purely an attempt on behalf of the Claimant to avoid its responsibilities in proving its claim or rather that they do not hold any proof and are not expected to validate their claim legally. 9. As per CPR 16.5(4) it is expected that the Claimant prove the allegation that any money is owed. 10. The Claimant’s Solicitors have admitted they allowed the claim to become stayed automatically as they did not have account documentation from the original creditor. After failing to provide any evidence that the Defendant has entered into an agreement or contract, it is my opinion that the Claimant’s claim is fanciful, contains no proof, and is uncorroborated. Totally unaware of the details of a debt they have purchased and expecting judgment/relief to be granted, relying on the court to base its decision on assumption and balance of probabilities. 11. It is therefore submitted that the Claimant be ordered by the court to quantify, verify, substantiate and disclose all evidence relied upon in their particulars of claim and should the Claimant fail to, that their claim be struck out under CPR 3.4 as having no basis.
  8. A few days before the court date, I received Restons revised costs schedule, which amounted to over £1000 all in including the costs of issuing the claim and the set aside fee. Restons also asked me to ensure I attended which I did. The judge dismissed Restons application to strike out my defence. He saw straight through their attempt to circumvent a more detailed examination of the case (mentioned intimate details required in CPR 31.16 I think), in a small claims court. the case has been allocated to small claims track with a time estimate of 90 minutes. The court has asked that I file and serve a written statement of the evidence in support of the defence, and copies of any documents I propose to rely on at the hearing. I think I can pretty much send the same points I mentioned in my witness statement for the strike out hearing. Should I also perhaps mention Restons attempt to use the strike out procedure on my defence in an attempt to avoid disclosure of documents relied upon in the case ?
  9. Draft witness statement as follows. I tried to adapt one I found on here (thanks Andyorch) but had to make quite a few changes. I think I have covered everything I can think of, but does it still hang together as well ? I, FULL NAME, will say as follows: 1. I am the Defendant in this case.Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief.I make this statement in response to the Application Notice dated 22 March 2017 of the claimant. I have used the same numbering as the Claimant’s witness statement attached to the Claimant’s Application Notice. 2.The Claimant claims monies outstanding under an overdraft facility. However three of the Claimant’s exhibits also refer to an account number of a running-account credit agreement, with a balance of £654.40, which the Claimant is said to have ‘consolidated’ into the overdraft facility (AHL 2 p.9, AHL 4 p.1 and point 3 of the letter dated 22 September 2016 in exhibit AHL 5).Accordingly, the Defendant sent a formal request pursuant to section 78 of the Consumer Credit Act 1974 to obtain documentation relating to the running-account credit agreement now covered by this claim.This request and the Claimant’s response are shown in Exhibit 1. The court should note that the Claimant has failed to provide the information required under Section 78 (1) of the Act, and therefore Section 78 (6) (a) applies. Therefore the Creditor is not entitled, while the default continues, to enforce the amount of £654.40 as listed on AHL 2 p.9. 3. It is admitted on receipt of the Claim Form I did request information pursuant to CPR 31.14, in particular to show how I entered into a contract with HSBC. In particular, I requested to see the overdraft facility confirmation and Terms and Conditions pursuant to section 61B of the Consumer Credit Act. 4. Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences. 5. Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial. 6. I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable. 7. The Defendant asked the court to put the Claimant to strict proof to show and disclose how the Defendant has entered into an agreement. No such disclosure has been forthcoming. 8. Simply stating in their reply to the Defendant’s CPR 31.14 request that the Defendant would have been provided with a copy of the contractual Terms and Conditions at the time the overdraft facility was opened and hence we see no reason why the Defendant now requires an additional copy is purely an attempt on behalf of the Claimant to avoid its responsibilities in proving its claim or rather that they do not hold any proof and are not expected to validate their claim legally. 9. As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed. 10. The Claimant’s Solicitors have admitted they allowed the Claimed to become stayed automatically as they did not have account documentation from the original creditor. After failing to provide any evidence that the Defendant has entered into an agreement or contract, it is my opinion that the Claimant’s claim is fanciful, contains no proof, and is uncorroborated. Totally unaware of the details of a debt they have purchased and expecting judgment/relief to be granted, relying on the court to base its decision on assumption and balance of probabilities. 11. It is therefore submitted that the Claimant be ordered by the court to quantify,verify, substantiate and disclose all evidence relied upon in their particulars of claim and should the claimant fail to, that their claim be struck out under CPR 3.4 as having no basis.
  10. Revised draft, need to get this off friday, how does this sound ? 1. I am the Defendant in this case. 2. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief. 3. I make this statement in response to the requirements of paragraph 4 of the Court Order dated 13 March 2017. I have used the same numbering as the Claimant’s second witness statement responding to the requirements of paragraph 3 of the Court Order. Evidence in response – letter dated 20/07/2016 6-8. The Claimant contends that the letter sent to the Defendant dated 20/07/2016, in response to the Defendants section 78 request, was an administrative error as no response is required where a County Court Judgment is in place. The County Court Judgment was subsequently set aside on 13 March 2017. On 8 April 2017, the Defendant sent an additional request for documentation under Section 78 of the Consumer Credit Act 1974. This request was received by the Claimant on 10 April 2017. The Act states that the Claimant has 12 days to respond, failing which the Credit Agreement becomes unenforceable. As of 28 April 2017, a response has not been received. 9. The Claimant’s position is that the Defendant has now been provided with documentation to satisfy the request pursuant to the Act, in the Exhibits to the Claimant’s Second Witness Statement. However, on or around 13 March 2003, the date the Claimant claims the Credit Agreement was executed, the Defendant did not reside at the address given on the Reconstituted Credit Agreement. The Reconstituted Credit Agreement must be a ‘true copy’ of the executed agreement, which must include the name and address at the time of execution. As this was not the case, the Section 78 request remains in default.   10. The case of Carey v HSBC Bank plc approves a method of satisfying a Consumer Credit Act 1974 Section 78 request, which is to provide a reconstituted a copy of the executed agreement. However, Section 127(3) of the Act continues to apply to agreements made before 6 April 2007. Section 127(3) of the Consumer Credit Act 1974 states that 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 itself containing all the prescribed terms of the agreement was signed by the debtor. The Defendant contends that no such document exists since not only has the Claimant been unable to locate such a document in the past 9 months since the Defendant requested to see a copy, the Defendant also does not recall ever signing such a document. Therefore the Defendant believes that the court should not make an enforcement order for the debt. Therefore by reason of sections 61 and 65(1) of the Act, the agreement may be considered to be wholly unenforceable. Conclusion 12. A court shall not make an enforcement order unless it can be satisfied that a signed copy exists or has existed. The Claimant has stated that it is not able to provide a copy of the original credit agreement, and also failed to provide a reconstituted copy so far. The defendant asks the court to follow section 127(3) of the Consumer Credit Act 1974 and strike out the claim due to lack of evidence of a signed agreement. 13. The Defendant submits that this Witness Statement complies with the requirements of paragraph 4 of the Court Order dated 13/03/2017.
  11. The Claimant has now served their second witness statement, for a small claims court trial set in July, as attached. I now have a week to respond to their witness statement and have drafted the following in response to their second witness statement. 1. I am the Defendant in this case. 2. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief. 3. I make this statement in opposition to the Claimant’s Second Witness Statement dated 5th April 2017. The same numbering as in the Claimant’s witness statement has been used. 6-8. The Claimant contends that the letter sent to the Defendant dated 20/07/2016 was an administrative error and should not have been sent where a County Court Judgment is already in place. The aforementioned judgment was subsequently set aside on 13 March 2017 therefore a County Court Judgment is no longer in place. The Defendant sent a further request for documentation under Section 78 of the Consumer Credit Act 1974 on 8 April 2017 which was received by the Claimant on 10 April 2017. The act states that the Claimant has 12 days to respond, otherwise the Credit Agreement is rendered unenforceable. To date a response has not been received. 9-10. The Claimant claims that the Defendant has been provided with documentation to satisfy his request pursuant to the Act. However, the Defendant did not reside at the address given on the Reconstituted Credit Agreement at the date the Claimant claims the Credit Agreement was executed. Therefore the Reconstituted Credit Agreement provided does not infact satisfy a Section 78 request 11. Section 127(3) of the Consumer Credit Act 1974 states that 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 itself containing all the prescribed terms of the agreement was signed by the debtor. The Defendant contends that no such document exists since not only has the Claimant been unable to locate such a document in the past 9 months since the Defendant requested to see a copy, the Defendant also does not recall ever signing such a document. Therefore the Defendant believes that the court should not make an enforcement order for the debt. 12. As stated in point 11, a court shall not make an enforcement order unless it can be satisfied that a signed copy exists or has existed. The Claimant has in fact stated that it is not able to provide a copy of the original credit agreement. The defendant asks the court to follow section 127(3) of the Consumer Credit Act 1974 and strike out the claim due to lack of evidence of a signed agreement. Lloyds Second Witness Statement.pdf
  12. Here's the notice from the court of the date of hearing, the witness statement and exhibits 1 and 4. Exhibits 2 and 3 are just transaction statements printed off a computer system. Exhibit 5 appears is communications from Restons which I haven't had the chance to redact. Exhibits 6 and 7 are requests for judgment and statement of costs. I assume I am now entitled to file and serve my own witness statement, up to 7 days before the court date, if I think that will help my case. FD SJ application.pdf
  13. Here's the covering letter with strike out form. There's also a five page witness statement and seven exhibits which I haven't scanned yet. Reston Mar 2017 N244 Strike out.pdf
  14. Thanks Andy. Yes a solicitor from Mortimers turned up and made their clients case. However, the judge set aside the judgment and ordered the case be allocated to the small claims court.
  15. Arrow took their time to reply to the section 78 request - about 3 months, so January 2017 They have totally ignored the 16 digit credit card account number in my request, instead putting the current account number on their reply and returning the £1 saying it's an overdraft so no executed agreement. I'm just wondering are they correct that they are not the creditor ? It was HSBC that merged the credit card into the overdraft back in 2008, long before it was assigned to Arrow Global in 2013. Roll forward to March 2017 and Restons have now served Arrow Global's application for a strike out of my defence (in post 1) without a hearing. It's clear from their exhibits that HSBC have merged an overdraft and a credit card but they don't seem to care! So just wait to hear from the court now ? Arrow FD Jan 2017 CCA reply.pdf
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