In Court In Two Days, All Or Nothing

[pt2537]

Right Storm,

 

have they provided you with a copy of the Credit Agreement as the judge ordered?

[tomterm8]

Your Address

 

Case No etc

 

Dear Sir Or Madam,

 

On calling the court at XX am today, i was informed that CLAIMANT had applied for summary judgement against me. I have not been supplied, or served, with any application for summary judgement, or informed by CLAIMANT that they would apply for summary judgement.

 

In the absence of a properly served application, i ask that the court refuse to consider this application until such time as I have been served with the application and any attached evidence, and given adequate time to make a formal response.

 

Further, i believe that the claimant can not rely on any evidence attached, if the hearing tomorrow deals with the summary judgement application, under part 24.5 of the Civil procedure rules.

 

I note that the applicant has not asked for the permission of the court to apply for a summary judgement under part 24.4(1)(b) of the civil procedure rules. I am entitled to 14 days notice of any hearing of the application under part 24.4(3).

 

Consequently, I ask the court to consider whether this application is vexatious, coming the day before a hearing in the matter and without proper notice. The claimant has not yet served on me the documents it is required to under the court order of DATE, and I am left unable to properly prepare for the hearing tomorrow.

 

 

Statement of truth: I believe the facts stated in this letter are the truth,

 

Yours Faithfully,

 

(Send this by fax)

Edited May 22, 2008 by tomterm8

[tomterm8]

obviously don't sign it, etc.

[storm]

Right, sorry been busy, but things seem to have change right at the last minute putting me in a ridiculous situation

 

 

All of a sudden they have now decided that part of the claim is actually for an overdraft (a very small part of it admittedly). I have just received the application for summary judgement through the door dated yesterday, so they have not complied with the requisite amount of time

 

I'll go into details of amounts as I feel I must now

 

Original claim was for 16k for various monies owed under loan account(s), now all of a sudden they are saying they cannot find the loan agreement so they wish to have that adjourned (to apply again at any time), and claim £3,000 for a current account that I haven't defended (well I didn't know they were claiming for it so of course I haven't), and they wish me to pay costs (which is the bit that worries me as I know what they are like)

 

They have even sent a copy of a default notice from the current account, which looks valid unless it needs to be an original and needs a signature (they could have created this recently of course)

 

I feel I shouldn't have to pay costs as the main argument was they were trying to claim on a loan without an agreement, well they have accepted they can't and this is what has dragged this out.

 

Where do I go from here, do I write to the court re-the vexatious claimant letter (1 day is not enough to prepare), and I also need to defend paying costs and interest (they have dragged this out not me), and I will look at the validity of the default notice

 

All help very gratefully received and thanks for the replies so far

[citizenB]

Surely they cant be allowed to do this ?

[storm]

Another update lol

 

The court have contacted me to say there will no longer be a trial tomorrow, but a hearing instead to listen to their application for a summary judgement.

 

So he hasn't given it to them as such, but we now seem to have an entirely different ball game and the costs they are going to apply for worry me far more than the last minute overdraft they are going to go for, as I am sure they will try to bump the costs up to cover any loss they feel they have on the loan

 

Also the fact they want to adjourn the claim for the loan in case they findn the agreement, surely 18 months is enough time for anyone, they clearly do not have it but want it hanging over me forever

 

Problem is I'm now worried about going for another adjournment (due to lack of time), in case I get lumbered with more costs

[tomterm8]

Send the letter above. By fax. Note the fourth paragraph.

 

They court can not consider this a hearing on summary judgement, and they can't admit their "default notice". also, they need to apply for their statement of case to be altered.

 

Can i have a look at the default notice they have attached?

Edited May 22, 2008 by tomterm8

[tomterm8]

Also, can you type what it says on the application for summary judgement?

[storm]

Summary judgement says

 

1 There be a judgement for the Cliamant for the sum of ***** (this is basically the overdraft plus interest)

 

2 The balance of the claim be adjourned generally with liberty to apply.

3 The Defendant to pay the Claimant's costs of these proceedings

 

because

1 The Defendant has not raised any defence in respect of the Current Account numbered ***** under which the Claimant claims the sum of **** plus interest

2 The Defendant has raised a defence to the Loan Account putting the bank to strict proof that the Loan Agreement was signed. The Claimant is still carrying out a search in order to try and locate this agreement and would ask that the claim relating to this account be adjourned generally

 

 

 

Ok so the upshot is that after 18 months of trying to find a loan agreement and convincing me that they will still win without one, they duck out of this at the last minute and admit defeat. However despite the fact I am seemingly right, they still want to claim costs.

 

They also state that I have not made a defence re the overdraft, well I would of had I known, but I still feel I have as I stated in my defence the requirements of a valid default notice etc, well this surely applies on overdrafts (and they have provided it)

 

Some interesting points on the default anyway which I will post up in a few mins

[tomterm8]

Can you write the actual original claim out?

[storm]

This is the deafult notice

 

Notice served under Sections 76 (1) and 98 (1) of the Consumer Credit Act 1974

 

IMPORTANT - YOU SHOULD READ THIS CAREFULLY

 

Claimants Name and Address (Potscode Omitted)

 

To:

Name :

 

My Name And Address

 

Overdraft on Account Number : ******

 

Your overdraft is repayable on demand being made by the Bank: and such demand will terminate the overdraft arrangement. The Bank intends to demand payment of the Total Amount Outstanding as set out below (if necessary by court action) and accordingly terminate the overdraft on or after

 

04/03/05

 

unless by that date you have made an alternative arrangement for repayment which is acceptable to the bank

 

Prinicipal £2925-28

Interest to the date shown above £69.01*

Total amount outstanding £2,994.99

 

 

Interest will continue to be applied to the account and the Total Amount outstanding will increase accordingly, if payment is not made by the date shown above

 

IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU ANY SURETY OR MORE TIME

 

IF YOU ARE NOT SURE WHAT TO DO YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS ADVICE BUREAU

 

For National Westmister Bank Plc

 

 

 

No Signature

 

Date 11/02/05

 

 

 

A few points. Obviously this is a photocopy and certainly something I do not remember receiving although I do not deny I had the account. They have also sent statements and interestingly the overdraft limit was £3,000 so I clearly haven't breached anything and was within the limit at the time of default, which probably explains why they haven't put anything like that, it seems either they suddenly fancied claiming it back, or dare I say it, it is something they have cobbled together more recently

 

98(1) suggests that they can only default me if I had an overdraft with an agreed expiry date, well this certainly isn't the case so surely that invalidates the notice.

 

And yes there are charges applied to the account

[storm]

OK, the original claim does break down the 2 accounts but this started such a long time ago, I have probably been guilty of letting my mind slip here, as the loan claim made up much more of the claim and this was what has made it drag on so long.(although I note the original claim isn't in their trial bundle)

 

Not sure whether I put it earlier but they made me an offer 2 days on a without prejudice basis regarding settling for the amount of the overdraft only (although they didn't specify this was for the overdraft at the time), and parties to bear their own costs.

 

I was about to reply after I telephoned the court today, and then of course found out they had applied for summary judgement including costs without giving me chance to accept or reject their offer (I don't consider 48 hours a reasonable time period)

 

As I say it's the costs that wory me although this default notice is looking dubious and I don't actually know what I was defaulted for

[tomterm8]

I would really, really like a look at the default notice... can you either scan it , or type it (along with any underline or italics ) up?

Edited May 22, 2008 by tomterm8

[storm]

I have drafted this letter guys, which I intend to fax to the court tomorrow (may have to iron out a few things)

 

Is this any good given the current situation

 

 

 

 

Name

Address

 

Claim Number ******

 

URGENT - RESPONSE FROM DEFENDANT TO CLAIMANT'S APPLICATION FOR SUMMARY JUDGEMENT, REGARDING CLAIM *****, ****v ***

 

Dear Sir Or Madam,

 

On calling the court at approximately 10-15am on 22 May, I was informed that the claimant National Westminster Bank Plc had applied for summary judgement against me. I had not at that time been supplied, or served, with any application for summary judgement, or informed by the claimant's solicitor that they would apply for summary judgement.

 

Whilst I received the application at approximately 12pm the same day, in the absence of a properly served application, I ask that the court refuse to consider this application until I have had the requisite time to consider a response.

 

Further, I believe that the claimant can not rely on any evidence attached, if the hearing tomorrow deals with the summary judgement application, under part 24.5 of the Civil procedure rules, this states it must be served at least 7 days before any such hearing.

 

I note that the applicant has not asked for the permission of the court to apply for a summary judgement under part 24.4(1)(b) of the civil procedure rules. I am entitled to 14 days notice of any hearing of the application under part 24.4(3). The claimant had given no indication they were going to go this route.

 

Consequently, I ask the court to consider whether this application is vexatious, coming the day before a hearing in the matter and without proper notice. The claimant has now served on me the documents it is required, but not under the court order of 20 Febriary 2008, and I am left unable to properly prepare for the hearing tomorrow.

 

On top of this the claimant made an offer of settlement on a Without Prejudice basis on the 16th May which was received by myself on 19th May. They have given me less than 48 hours to reply to this before applying for a summary judgement. On those grounds I ask the court to allow myself further time to reply to the settlement offer and respectfully suggest to the court that given all the reasons outlined above, the claim for summary judgement cannot possibly succeed.

 

With regards to point 2 of their application, 'the balance of the claim to be adjourned generally with liberty to apply' I respectfully ask the court to strike out totally this part of the claim. The claimant has had 18 months to supply a properly executed agreement and has failed to do. To leave them at liberty to apply should they 'come across it' would seem totally unfair on myself, and they have given no reason if they have not found it after 18 months of searching, why they would expect to do so in the future.

 

I object to their application for myself to pay their costs, as the only reason this claim has gone on so long it because of their refusal and denial of their obligations to need a properly executed

agreement in order to enforce this claim. This has been stated by the claimant's solicitor in both correspondence to me and several hearings. With respect, if the claimant is now avoiding trial without an agreement this suggests that they were in fact incorrect and cannot claim any costs that they have incurred fighting this particular matter. I would ask the court to consider if this is also vexatious as the claimant has carried on pursuing this matter, knowing it to an utterly unenforceable part of the claim.

 

I also suggest to the court that there are issues with the overdraft account, now they have produced the default notice (this was not produced before).

 

The overdraft limit on this acount is actually £3,000, although I note the amount on the default notice claimed is under this.

 

This implies I had not actually broken any terms of their agreement as suggested by the default notice, which was issued under Section 76 (1) and Section98 (1) of the CCA Act 1974.

 

Section 76 (1) can only be used if the overdraft expires at a specific time, as explained in 76 (2)

 

Section 76 (2) says 'SubSection 1 applies only when

 

(a) A period for the duration of the agreement is specified in the agreement

 

This applies both to Sections 76 and Section 98 so I respectfully request to the court that these are invalid default notices unless, the claimant can prove that there was an agreement specifying when the overdraft expired.

 

As the claimant has not provided one, and given the length of time the case has gone on for, and the claimant's conduct so far, I respectfully ask to the court to consider whether the claimant's claims have any merit whatsoever.

[storm]

Hi Tom

 

Unfortunately I don't have a scanner at present, but have copied it out on a previous post

 

Is this not sufficient, is it something specific?

[tomterm8]

Um, well, which post was it?

[storm]

15:55

[tomterm8]

cool... having a look now... I THINK there might be things to tweek

[tomterm8]

Does the termination notice include the creditors name and address?

[storm]

It says the name of the bank, the location and street, no postcode

[tomterm8]

I think most of what you've written is all good stuff, we need to add a little bit to your letter and change a few things, basically relating to the default. What they've supplied is NOT a default notice, it is a termination notice...

 

So, we need to go for a seperate argument:

 

 

 

 

With regard to any aspect of the notice under s98(1) I dispute that the claimant had reasonable grounds to terminate the agreement, or that I breached any term of any agreement with the claimant. I believe that is now an established case law under The Office of Fair Trading and Abbey National PLC and 7 others[2008] EWHC 875 (Comm) that late payment of this agreement is incapable of being a breach of a credit agreement. Consequently, the default notice issued in invalid, and the termination of the agreement constitutes an unlawful rescission of contract.

I dispute that the term they rely on is enforceable against me, since in the terms it is written in it explicitly allows them to terminate the agreement without any grounds whatsoever, and this is void as an unfair term under the The Unfair Terms in Consumer Contracts Regulations 1999 (No. 2083) Schedule 2

(g)enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;

The Banking Code says that, in normal circumstances ( which the claimant is a member of) states firms should give customers at least 30 calendar days’ notice before closing their accounts.

Further, I believe that the claimant debited numerous late payment charges and returned item fees, and I respectfully ask the permission of the court to counter claim for these charges, which I believe comprise a substantial part of the claimed figure. I respectfully ask the courts permission to amend my defence in line with these arguments. I admit that as a Litigant in person, without any qualification at law I misunderstood the nature of the claim at the time I wrote the defence, and would like to incorporate these arguments which I believe are very relevant to the claim and which, I respectfully submit, need to be decided in the interest of justice.

Edited May 22, 2008 by tomterm8

[storm]

Excellent, thanks very much tom, I'll tweak that tonight and add all that you have put in

 

 

Hopefully that can do the business tomorrow

Thanks again and sorry for the numerous posts earlier but things were changin every second and I had been caught totally on the hop (which no doubt was there intention)

[tomterm8]

incidentally, did they provide you with statements? that's rather important, I would expect, so you can actually find out how much legitimatly the debt is.

[storm]

Yes, although they are useless because they are copies that I can't read

[tomterm8]

ah, mention that in your letter!

 

Also add the phrase: statetement of truth - i believe these facts to be true to the bottom. Type your name, don't sign it.