Court Summons from Brachers Solictors.. help

[orky]

Hi Docma

 

Thank you so far.

 

Do I send this amedned defence to the court prior to the hearing or take it on the day. If I send it prior do I accomapany it with any court forms and fess etc.

 

As an adjunct where do you feel my case it weakest?

 

Regards

 

orky

[Docman]

Hi there,

Well I think you shot yourself in the foot with the point that a large chunk was down to unlawful charges, but I think that is a minor point.

As regards the hearing, remember to be successful they claimant has to show that you do NOT have a real prospect of successfully defending the claim. You have put in a defence that is valid in law. You should argue that this case should go to trial. Then add 'unless the parties can reach agreement'.

You will have to bone up on the requirements to have an enforceable CCA and a valid Default Notice. You should not have to argue these points. That should be done at a trial, not here. However, it is possible that an old duffer of a judge may start asking you questions about the debt at this hearing.

Keep in mind your two mantras - ‘No CCA, no enforceable claim' and 'No valid Default Notice, no enforceable claim'.

Be polite to the judge.

[orky]

Hi Docman

 

Thank you for help so far.

 

May I trouble you and ask you the following:

 

1. Do I send the amended defence to the court with any special froms or on its own.

2,. It appears that my main argument here is that this defence is worthy of a trial and should not be struck out and a summary judgement issued.

 

Regards

 

Orky

[Docman]

Orky

 

Slightly tricky because Brachers haven't responded to your original defence. Instead they have filed for Summary Judgment; attached to the application is a witness statement that is clearly a response to your defence.

 

Your objection to the summary judgment application is that you do have a valid defence and so summary judgment is not appropriate.

 

I suggest you write to the county court enlcosing three copies of your amended defence. Expalin that whilst the claimant's solicitors have not responded to your defence, they have filed a witness statement which appears to be a response to your defence and which provides some additional documents. Accordingly, you have taken the witness statement as a response and ask the court to accept your amended defence following receipt of documents from the claimant.

 

Finally, ask the court to place a copy of the defence with the papers for the summary judgment application. The court staff should do so but sometimes things can go wrong. If the court acknowledges receipt of your defence, take the receipt with you in August.

 

Doc

[orky]

Hi All

 

Docman thank you for your help to date.

 

My summary judgement hearing is on thursday at 2.00pm

 

I have spent the last few days educating myself on the CCA, which is tuff going, trying to help myself at the hearing as I am representing myself.

 

The main thrust of my defense is that the CCA does not contain all the prescribed terms and questioning the validity of the default notice.

 

I have been looking at detail at Amex's alleged enforceable agreement and I would appreciate any views on the following.

 

The document is headed with the follwing:

 

"The American Express

Platinum Credit Card Application Forms"

 

Does anybody feel that this maybe useful to me or not?

 

Amex lawyers have stated the document was countersigned by Amex. All I can see is a date stamp and no signature.

 

Could this be of use?

 

Lastly can anybody advise me if a default notice needs to be deliverd to me in any particular way i.e personally delivered.

 

Rgards

 

Orky

[42man]

This might help

 

What might constitute an unenforceable default notice will include any of the following:-

 

Wrong name of debtor, incorrect spelling, no name.

No name of creditor, incorrect spelling.

Wrong address of debtor, incorrect spelling, no address.

Wrong address of creditor, incorrect spelling, no address.

Wrong a/c number, no a/c number.

No date and or the wrong or no prescribed time for compliance with the DN.

An incorrect amount stated to remedy the contractual breach, which for example would include an amount that includes penalty charges.

The specific details of the breach are not explained.

It is not clearly stated that it is a default notice.

 

This is from the Consumer Credit Act too...

 

32. In addition, the claimant states at point 4 in their particulars that that there is no need to rely upon service of a default notice in accordance with section 87(1) of the Consumer Credit Act 1974. The defendant rejects this assertion

 

33. Section 87 clearly sets out that a default notice is a prequsite before a creditor can become entitled to take any action in respect of a regulated credit agreement. For the avoidance of doubt I have included the relevant sections of the Consumer Credit Act 1974 below

 

87. Need for default notice.

- (1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

 

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

And further more section 88 states

 

88. Contents and effect of default notice

.

- (1) The default notice must be in the prescribed form and specify-

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than seven 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 seven days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

34. Therefore the claimants statement that service of a default notice is not required is clearly in error of law and the above sections of the Consumer Credit Act 1974 clearly sets out that service is a requirement and the defendant puts the claimant to strict proof that a default notice which is fully compliant with the requirements of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as to its form and contents, was served upon the defendant

 

35. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance. Therefore if the claimant cannot produce proof that a compliant default notice has been served, the defendant requests that the court strike out the claimants claim on the grounds of having no reasonable prospect of success especially when considering points 4,5 & 6 above

[pt2537]

orky, can you let me know who are representing Amex,

 

would it be a company called Mischon?

[orky]

Hi PT

 

It is Brachers Solicitors based in Maidstone.

 

R

 

Orky

[orky]

Hi Everbody

 

Thank you all so far particular PT and Docman.

 

The story so far.

 

I had a summary judgement application heard on the 21/8 at 2.30pm. The hearing was adjoruned as I had provided an amended and further defence to the court but and had not sent a copy of this to the claimant 7 days before the hearing. The judge I think did me a favour as I had contravened a CPR rule over this so he adjourned and asked me to send a copy of this defence to the cliamant and a new court date will be set.

 

This process has made me consider I have have a weak case based upon the following:

 

The thrust of my defence to the original claim and reason for requesting the SJ be struck out is as follows:

 

1. The alleged CCA doument does not contain the prescribed terms to make io enforceable.

2. The file referral fee added to the account of £1186 is not payable.

3.The notce of default does not meet the requiremets of the CCA in relation to format and delivery.

 

Effectively I have put the defendent at strict proof thereoff.

 

My question concerns the first part of this, namey precribed terms. I am of the opionon the Amex documet meets all the areas except signature of the creditor (Amex). this I think makes my case very weka and I would appreciate any views anybody may have

 

r

 

orky

[pt2537]

Orky, can you post me a link to the Agreement please and i will re-look at it and see where we stand

[orky]

Hi PT

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=2886&d=1213285257

 

Hope this is OK

 

it is terms 3,onwardsconcerning main presribed terms etc

 

r

 

hop

[orky]

Hi PT

 

Did you have a chance to look at the agreement I sent you

 

Regards

 

orky

[tinkerbell20]

Agreement appears to me to be enforceable especially as you have signed the back of the form with the prescribed terms.

 

However the default notice doesn't comply. It should be 14 days AFTER service

[thebusybee]

I have just subscribed, as I too am being sued by Brachers for an Amex debt - totalling £27K!!!! (2 Amex credit cards which I have had and paid pretty much on time for the past 5 years). I wish I had subscribed earlier as i have to file my defence today or I run out of time. I would love some help and advice, so please if you read this and comment, it would be really helpful.

 

I have filed my acknowledgement of service and admitted part of the claim, I will not complete the amount I believe due, but to write saying it is impossible to calculate as Amex have not provided me with the information I have asked for - copies of all agreements, etc. I will argue that they have made a claim and have not given me a copy of my contract to prove their claim.

 

When I get to read the credit agreement I hope to contest:

a) the referral fee is excessive and has not been justified - arguably not legal - but would like advise on this.

b) the charges have been illegal - over past 4/5 years almost every month I have been charged for something, either over limit fee (because they charged huge interest), late payment fee, etc.

c) the interest rate charged is not as per the initial agreement, I want to see where in the agreement they are entitled to increase the interest rate to whatever they want, at any time.

 

They were charging over 20% and adding huge charges.

I believe that I probably owe Amex about 50% of the total they are claiming, if that.

 

Advice please on best way forward now - I may have done all the wrong things, but any help is really appreciated.

[orky]

Hi everyone

 

An update of my case.

 

Went for the second time to court for the Judge to here the claimants (Amex) application for summary judgement. the first one was adjuorned due to me filing a defence and not sending a copy to Amex 7 days before hearing. I think the judge gave me the benefit of doubt.

 

New hearing held on 11/11. whilst waiting for hearing the cliamants solicitor asked for a brief chat in a private consulting room. the first thing he did was give me an up to date summary of costs incurred I assume this is normal protocol. he then chated and somehow we started talking about whetehr I owned property etc and then we got talking about me doing a deal with Amex to stop the case. I took this as a without prejuduce conversation and thought no more of it.

 

The hearing came and (THIS IS THE WARNING) the first thing he mentioned to the judge was that I was trying to do a deal to settle and by implication I therefore must acknowledge the debt. she basicallyn agreed but to my benefit she said that due to the fact he had mentioned this before any legal aargument she had formed a prujudicial view of me, namely I must agree the deby exist otherwise why would I try and do a deal, and therefore she would not hear the hearing and adjouurned and would noy allow the claimants costs.

 

I felt i had been "done up like a kipper" but the lawyer seems to have messed it up. The warning is do not speak to these people just listen.

 

R Orky

[Docman]

hi Orky

 

Can't trust a lawyer, can you - other than to try some dirty trick or another!

 

Probably means they know they wouldn't win their case, otherwise he would have just gone ahead and argued to get judgement for the full amount.

[orky]

Hi All

 

Had my latest hearing today as the claimant has applied for summary judgement. After an 1 hour of debate the judge felt the cliamant should be awarded judgement but refussed the file refferal fee.

 

My question is what happens next. Will Amex go for bankruptch/ bailiffs etc

 

any views much appreciated.

 

Orky

[supasnooper]

They may go for an Interim Charging Order to secure the debt.

 

Did you ask for a Time Order or has the court ordered you to pay by instalments ?

[orky]

Hi

 

I did not ask for a time order as I do not know what one is and the court did not ask me to pay by installment

 

r

 

orky

[supasnooper]

So I'm presuming it was a forthwith judgment ?

 

What payment order did the judge state ?

[Josie8]

Hi

 

I did not ask for a time order as I do not know what one is and the court did not ask me to pay by installment

 

r

 

orky

 

 

You need to make an application for redetermination & ask for monthly instalments. Do it asap before Amex apply for the charging order.

[supasnooper]

This is a letter that Josie8 refers to for applying for a redetermination hearing on the CCJ payment. This does NOT incur a fee. :grin:

 

If you wish to apply for redetermination then contact your local county court that deals with bankruptcy and send them this letter (amend to suit)

 

 

 

Date,,,,,,,,

 

 

The Court Manager

 

CLAIM NUMBER: ******

 

To the Court Manager:

 

REDETERMINATION UNDER RULE 14.13CPR

 

I apply for this matter to be reconsidered (redetermination under Rule 14.13 of of the Civil Procedures Rules) Under rule 14.13 there is no court fee to make this application.

 

I am unable to pay the full Judgment forthwith/instalment as ordered on (insert date) and submit that this has been set an unrealistic amount (to pay in one instalment).

 

I request the Court reconsiders the Judgment. To assist I enclose an up to date financial statement and list of other unsecured debts.

 

As you can see my budget shows I have £..... surplus / £.... deficit after essetial living costs and also have (insert number of creditors in total). Given my circumstances and considering my finances as a whole I am able to offer £.... monthly instalments and request the Court set the Judgment

at this amount.

 

Under rule 14.13 of the CPR I am entitled to have this redetermination and if necessary transferred to my local County Court. My application is also compliant with the time limit as it falls within the 14 days from the original order.

 

 

I look forward to hearing from you.

 

 

Yours faithfully,

 

 

 

Your Name

 

Edit to suit your case and enclose an income\expenditure sheet (available here

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=4528&d=1226233492 )

 

 

 

 

 

 

Send it signed, next day recorded and wait for reply, when you get the reply dont presume it will automatically get transferred to your local court.

 

 

 

 

If it does not then send this letter to make sure.

 

 

 

 

In the Matter of XXX Vs Yourself

Case Number XXXXX

 

Dear Sir or Madam

 

Re: Redetermination hearing on XXth.

 

I would respectfully ask the court to reconsider the order dated XXth, in which you have set a redetermination hearing on Xth at XXX County court.

 

As a litigant in person the civil Procedure rules explicitly state that there should be an automatic transfer of any redetermination hearing to my local court, which is XXX County Court.

 

The Civil procedure Rules applicable are:

 

14.12 (1) Where a judge is to determine the time and rate of payment, he may do so without a hearing.

(2) Where a judge is to determine the time and rate of payment at a hearing, the proceedings must be transferred automatically to the defendant’s home court if –

(a) the only claim is for a specified amount of money;

(b) the defendant is an individual;

© the claim has not been transferred to another defendant’s home court under rule 13.4 (application to set aside (GL) or vary default judgment – procedure) or rule 26.2 (automatic transfer);

(d) the claim was not started in the defendant’s home court; and

(e) the claim was not started in a specialist list.

 

 

(Rule 2.3 explains which court is a defendant’s home court)

(3) If there is to be a hearing to determine the time and rate of payment, the court must give each party at least 7 days’ notice of the hearing.

 

I thank you for your cooperation in this matter,

 

 

Yours faithfully,

 

 

Your Name

 

 

 

Edited January 16, 2009 by supasnooper
edit required

[DocH]

In relation to the last paragraph of the redetermination letter, post 117 indicates that orky attended the court. Is there an alternative last para for the letter.

[supasnooper]

letter amended .........well spotted DocH

[Monty2007]

Dear Orky

 

Did they not consider your defence? especially the DN which did not provide the appropriate time for remedy.

 

Why do you think your conversation with the Brachers solicitor compromised you?

 

This seems very harsh.