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Thanks for that v_b.

 

So i guess we should concentrate on the agreement/application...

 

So now can we get some conclusive evidence that my aggreement is unenforceable and make specific points please.

 

I am not quite sure myself, although I do feel that it seems unenforceable.

 

Can someone with more experienced and with legal knowledge please take a good look and give me an idea on how to prepare my defence, and also if anyone can send me links to similar cases as mine, so I can begin my defence.

 

I am not quite sure where to begin...???

 

Thanks. G

 

The agreement appears to be unenforceable;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/135558-help-court-summons-restons-7.html#post1614758

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Hi G

 

Thanks for that v_b.

 

So i guess we should concentrate on the agreement/application...

 

So now can we get some conclusive evidence that my aggreement is unenforceable and make specific points please. Not wishing to sound unhelpful, but I thought the main reason why the application (alleged agreement) was unenforceable had already been discussed, i.e. that it does not contain the prescribed terms. The terms in question that an agreement needs to contain are (quote):

 

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement, and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

I am not quite sure myself, although I do feel that it seems unenforceable.

 

Can someone with more experienced and with legal knowledge please take a good look and give me an idea on how to prepare my defence, and also if anyone can send me links to similar cases as mine, so I can begin my defence. Don't worry though, there are many defences (mainly from Paul) floating around the forum dealing with this fairly common fault with HFC agreements. I can point you to the defence which Paul (pt2537) prepared for me which involved the same issue as you have with your "agreement", if you like. Anyway, heres the one I used, post #49 http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-3.html#post1300092

 

I am not quite sure where to begin...???

 

Thanks. G

 

One other thing, how illegible is the "agreement" as from your scan it doesn't look too clever? I believe that if the document is illegible that is a further reason to have it thrown out, which could then be incorporated into your defence.

 

Hope that puts your mind at ease a little ;)

 

Cheers

Rob

Edited by robcag
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Thanks Chris and Rob.

 

Just to clarify will I need to prepare a full defence and a statement of some sort against their points in the summary judgement and submit it before the hearing?

 

Could you please help me prepare these, I can't seem to get started, and time is ticking away...

 

I would be grateful if someone can give me an idea or example of a defence and a statement against their summary judgement points.

 

Then I will be able to amend accordingly.

 

Thanks a million.

Thanks for caring... G

 

It's never as bad as it seems...

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They have no chance of getting summary judgment as the debt is unenforceable. I'd suggest they've applied for it as they know this and are trying to get you to cave in and admit the debt.

 

One thing you should consider is applying for summary judgment, yourself, in reply. It's an appropriate response to their application, IMHO. It would also give you a better layout for putting your case forward then defending their arguments. There will be a fee for the application, which is £40-£75.

 

You could just respond to their application, by way of response, but I'd like to stick the boot in and apply for SJ against them. This is exactly what happened with me, against HFC, if you want to take a look through my thread; (it's about half way through)

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Thanks Chris.

 

I am not sure what to do yet...

 

If I apply for SJ against them are there any time limits of when I can do this?

 

And won't it be seen as abuse or wasting time by the court?

 

G

Thanks for caring... G

 

It's never as bad as it seems...

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If I apply for SJ against them are there any time limits of when I can do this?

 

Ideally, you need to do it about 4 weeks before their application for SJ is heard - that way, both applications can be heard at the same time.

 

If I apply for SJ against them are there any time limits of when I can do this?

 

Only if there's no chance of getting it - and there is! ;)

 

Realistically, the Court will not want to deal with this claim by way of Summary Judgment Hearing - the claim is far too complex to be heard in 1 hour, considering the arguments.

 

Of course, we could argue their application against you is an abuse of process, too. :p

 

Anyway, the way I would go is to issue a SJ application against them, then barter with them prior to the SJ hearing to withdraw their application if you agree to withdraw yours and allow the Court to set a final hearing date, rather than mess on like this. The worst that can happen is that both applications are refused and that happens anyway - this way, you get to play the game and potentially reduce the amount of time it takes to deal with it. (By the time a SJ hearing date is set, you could have had your final hearing date anyway, IMHO)

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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  • 5 weeks later...

Hi Chris & all,

 

I need to send in my defence/reply to the summary judgement by Wed 20th Aug, (SJ hearing is on 1st Sept) so would like to ask for assistance in preparing this.

 

Can you please get me started and help me prepare a reply...

 

What do I need to do, and how do I do it?

 

Please help me as the time has come to act...

 

Thanks

 

G

Thanks for caring... G

 

It's never as bad as it seems...

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So, to clarify, you want to defend the SJ application, rather than make your own application for SJ - am I right?

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Hi Chris

 

Yes I don't have time to make application for SJ - I think (1st Sept hearing)

 

So I will need to send in a reply to there SJ.

 

Please advise me IYHO...

 

G

Thanks for caring... G

 

It's never as bad as it seems...

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you can make an application and get it listed for hearing on the same day;)

 

did an application recently for another case and it was listed straight away so you can make an application thats for sure but it will cost you £75 unless you qualify for a exemption

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Hi Paul thanks for replying.

 

IYHO do you suggest that I send an application for SJ, would this be the best way to go?

 

What difference would it make to send in a defence/reply?

 

And does my wife have to attend the hearing, or can I represent her in person, or can the hearing take place without actually attending? (By getting her to sign a letter for me to do so)

 

G

Thanks for caring... G

 

It's never as bad as it seems...

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I don't think either of you will get SJ. It really depends if you want to pay hard ball with them and have £75 to waste.

 

You can reply to their SJ hearing, but what you have means they won't get it, IMHO.

 

Your wife probably should attend, unless there's a reason why she can't - you can speak for her on the day, but the Judge will need a letter saying why she can't attend and that you can speak on her behalf on the day, if she isn't going to Court.

 

I replied to a Reston's SJ application myself - I'll post that up for you here, which will get you started, but you will need to amend it to suit your situation;

 

Claim Number: ********

In the **** County Court

 

 

Between:

****

(Claimant)

and

 

****

(Defendant)

 

_______________________

SUMMARY JUDGMENT HEARING;

WITNESS STATEMENT (DEFENDANT)

_______________________

1. I, ****, the Defendant in this case, make this statement from my own knowledge or experience, except where reference is made to specific documentation, attached in the form of an exhibit, in which case this statement is made in support of that documentation.

 

2. This statement is designed to clarify and elucidate on the Defendants response to the Claimants Application for Summary Judgment against the Defendant and to clarify the grounds on which the Defendant seeks Summary Judgment against the Claimant.

THE CLAIMANTS APPLICATION FOR SUMMARY JUDGMENT

 

3. The Defendant objects to Summary Judgment being awarded to the Claimant for the reasons stated herein. The Defendant further objects to the Court issuing an Order striking out its Counterclaim – the Claimant (in its Application Notice) has submitted no evidence in support of this request. The Defendant therefore sees no reason why such an Order should be granted and is unable to substantially respond to the Claimants request for the Court to strike out the Counterclaim, as a result, save from the information contained herein.

 

4. Paragraph 1 of the Claimants Application is admitted, save for where a denial is outlined elsewhere in this document.

5. Paragraph 2 of the Claimants Application is denied; insofar as it is admitted (save for where a denial is outlined elsewhere in this document) that the Claimant is claiming £5,177.00 with interest of £583.72, totalling £5,760 .72, but it is denied that this is the amount that the Claimant can claim against the Defendant, since payments have been made under the agreement since the date of Default and these payments have not been taken in to account in the Claimants claim. This amount also does not appear in the statements attached in support of the Claimants Application.

6. Paragraph 3 of the Claimants Application is denied; insofar as the Default Notice attached to the Application Notice, on which the Claimant is relying in this Application, dated 9 August 2005, (“Exhibit 1” attached) gave the Defendant until 26 July 2005 to remedy the breach; not 19 August 2005, as stated by the Claimant in its submission in Part C of the Application.

 

Such Default Notice, therefore, does not meet the form and content requirements of Part VII, specifically s.88(2), of the Consumer Credit Act 1974 – (as amended) the Claimant is therefore unable to rely on the Default Notice to seek any enforcement of the agreement – and therefore any Judgment – (whether that be Summary Judgment, as sought under CPR Part 24, or otherwise) against the Defendant, having failed to meet the requirements in allowing the prescribed period to pass before taking any enforcement action against the Defendant, as prescribed in that section of the Act.

 

The agreement has, therefore, been unlawfully Defaulted and Terminated, in that the copy Default Notices supplied are not accurate for the reasons stated in this document, along with previous submissions made by the Defendant, and fail to comply with s.88 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Notice supplied;

i. Is addressed to the Defendant’s current address – an address that the Claimant was not aware of at the date of issue, (9 August 2005) the Defendant not having lived at this address at that time and only moving to this address in September 2005. The Defendant submits, therefore, that this is not a true signed and certified copy of the original Default Notice as issued the Claimant, so the Claimant is unable to rely on it as being such; and

ii. Does not contain the correct amounts in relation to the agreement in question, at the time of issue. The outstanding balance shown on the alleged original Default Notice, dated 9 August 2005, being shown as £4,992.49 and the statement of account provided by the Claimant, showing an account balance, dated 6 August 2005, of £4,663.85 with no further statement entries between 6 August 2005 and 9 August 2005 – a discrepancy of £328.64; and

iii. The Default Notice is dated 9 August 2005 and gives until 26 July 2005 to remedy the breach outlined in the Notice. The Notice, therefore, does not provide the period of remedy prescribed under s.88 Consumer Credit Act 1974 and cannot be relied on for enforcement in the current proceedings as a result; (s.87 Consumer Credit Act 1974) and

iv. The Defendants Credit Reference file showing an original Default date of 30 April 2004 - the Default Notice being dated 9 August 2005; and

v. The Default amount being incorrect as the Default Notice includes collection charges applied to the account, which are included in the Default and Termination figures of said Notice, thereby invalidating that Notice due to the unlawful application of charges, as outlined below;

 

During the period in which the account was operating the Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest at the contractual rate on these charges once applied. (“Exhibit 2” attached)

 

The Defendant will further refer to 4 other account statements, (“Exhibit 3” attached) numbered ****, ****, ****and ****, all of which had their account balances consolidated into this account - this is documented by the closing balances within each statement.

 

The Defendant requested copies of the original agreements for these accounts from the Claimant in a Subject Access Request under s.7 Data Protection Act 1998 – in its response, (“Exhibit 4” attached) the Claimant has admitted it is unable to provide copy agreements for accounts numbered **** and **** at this time and has further failed to provide these to date, despite its contention that this will take 3-4 months for document retrieval, but did provide copy agreements for accounts numbered **** and ****. (“Exhibit 5” attached)

 

These accounts also had various charges applied to them which are now contained within the balance of the account in question. The total of these charges being £**** and the breakdown of charges applied to against accounts being as follows;

 

a) Account **** – £****; and

b) Account **** – £****; and

c) Account **** – £****; and

d) Account **** – £****; and

e) Account **** – £****.

 

The Defendant contends that no such contractual provision exists within the agreement in question, or the agreements under the accounts shown above, (which were consolidated) to allow the Claimant to levy such charges.

 

In the alternative, which is denied, where it is held that there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the Common Law of penalties because the charge in each instance represents a disproportionately high sum in compensation compared to the cost of the purported breach; are not in any way a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or be related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to create a profit for itself.

The Defendant submits that the charges levied to his account held with the Claimant are, notwithstanding the defence of the Claimant, default penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the Defendant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the common law.

 

vii. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Defendant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

7. Paragraph 4 of the Claimants Application is admitted, save for where a denial is outlined elsewhere in this document.

 

8. Paragraph 5 of the Claimants Application is denied, save from where the Defendant admits that;

a. A full defence to the claim has been submitted; and

b. That the level of particularisation of the Claimants claim has been questioned; and

c. That the claim was issued via the Northampton County Court Bulk Processing Centre; and

d. That the letter referred to in the Claimants Application, (with attachments) dated 30 August 2007, was received, but denies that a response to that letter was not sent to the Claimants representatives.

 

9. Paragraph 6 of the Claimants Application is admitted.

 

10. Paragraph 7 of the Claimants Application is denied for the following reasons, which the Defendant relies on in full defence against the Claimants claim;

 

a. The Claimant has failed to fully comply with a request pursuant to s.77 Consumer Credit Act 1974, under which the Defendant requested information specifically outlined within that section, dated 11 August 2007. (“Exhibit 6” attached) Specifically, the Claimant has failed to supply the information required under s.77(1), (terms and conditions referenced within the agreement) s.77(1)(a), s.77(1)(b) and s.77(1)©. Until this information has been provided, the Claimant is in default under s.77(4) and cannot enforce the agreement via the Court; and

 

b. The agreement is improperly executed because it is not in the prescribed format set out in s.60, s.61 and s.64 CCA 1974 and under the Consumer Credit (Agreements) Regulations 1983.

 

The agreement was made before s.15 of theConsumer Credit Act 2006 came into force - therefore, by way of s.11 of the Consumer Credit Act 2006, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force.

 

That the agreement has been improperly executed under s.61 Consumer Credit Act 1974, in that it does not include details of the protection and remedies available under the Consumer Credit Act 1974, as prescribed in s.60(1) CCA 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553).

 

Any application for an Enforcement Order under s.65(1) Consumer Credit Act 1974, as a result of the improper execution under s.61 Consumer Credit Act 1974, (outlined in paragraph 46, above) should be dismissed under s.127(1)(i) Consumer Credit Act 1974, due to the prejudice caused to the Defendant by;

 

i. The Defendant’s pleadings regarding the defaulting and termination of the account outlined in paragraph 5 of this document, specifically;

 

1. That the account has been improperly and unlawfully Defaulted and Terminated; and

 

2. This improper and unlawful Default and Termination has effected, and continues to effect, the Defendant’s reputation and Credit Reference files, held by the Credit Reference Agencies;

 

In addition to this, that the agreement has been improperly executed under s.64(5), in that the agreement does not contain statements of the debtors right of cancellation, as required by s.64(1) Consumer Credit Act 1974 and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553) and that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 Consumer Credit Act 1974 and the regulations there under.

 

Any application for an Enforcement Order under s.65(1) Consumer Credit Act 1974, as a result of the improper execution, under s.64(1) Consumer Credit Act 1974, (outlined in paragraph 44, above) must be dismissed by the Court pursuant to s.127(4)(b) Consumer Credit Act 1974.

 

c. The Defendant further makes reference to a case heard in the House of Lords, Wilson v First County Trust Ltd [2003] UKHL 40; in particular, specific reference is made to Paragraphs 49, 121, 123 and 172 of that Judgment, which outlines the Court powers in such circumstances.

13. The Defendant avers that the Claimants Application for Summary Judgment under CPR Part 24 should be turned aside as the Defendant has submitted a full defence to the claim brought, offering a full legal basis for each point of defence submitted, so must reasonably be said to have a realistic prospect of defending the entire claim in full.

 

14. The Defendant makes reference to paragraph 8 and 12, above, outlining the reasons why the Claimant is not entitled, at this time, to seek any enforcement of the agreement via the Court.

 

15. The Defendant therefore submits that the Claimant is unable to seek Judgment, Summarily under CPR Part 24, or any Judgment whatsoever, in relation to the agreement for the reasons stated herein and requests that the Court turn aside the Claimants Application for Summary Judgment as a result.

 

I, ****, the Defendant in this case, believe that the facts stated in this document are true.

Signed:

****

(Defendant)

Dated this, the **** day of ****, in the year two thousand and eight.

 

Now, this might seem quite technical, because I've left all my arguments in - I've done that because some of them might apply in your case, in which case you just amend what I used. If it doesn't apply, just remove it completely and replace it with what does apply in your case.

 

By the way, the result of this was that HFC/Restons agreed to withdraw their application for SJ against me if I agreed to withdraw my application for SJ against them. (Which demonstrates the reason I asked you if you wanted to make an application in response, as it gives you more bargaining power, IMHO)

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Thanks Chris.

 

Now just to clarify, what you have posted was a reply to their SJ...

 

Or was this the application for a SJ by you?

 

In other words, can I send in a reply to their SJ using a similar draft as yours amending accordingly, but not having to apply for SJ?

 

Or can I only use a similar draft as yours if I apply for a SJ?

 

I am not quite clear...??? Sorry!

 

Thanks. G

Thanks for caring... G

 

It's never as bad as it seems...

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It's my response to their application for summary judgment against me - I do have my application for summary judgment against them, but I haven't posted that. I can if you want to apply for it, though - it's pretty straightforward, all in all. :p

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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just so we all remember

1.8 What if an agreement is entered into before 31 May 2005?

If a regulated agreement is executed before 31 May 2005, it is subject to the 1983 Regulations but not the 2004 Regulations.

If it is executed after that date, but is signed by one or more parties before then, it may benefit from transitional provisions

Edited by Vulture_Bank
edited

Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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Here is my first attempt at preparing a witness satement, please feel free to scrutenise it, and post any amendments, suggestians and advise.

 

Thanks G

 

Claim Number: ********

 

In the xxxxxx County Court

 

Between:

****

(Claimant)

 

and

 

xxxxxxxxxxxxxxx

(Defendant)

_______________________

SUMMARY JUDGMENT HEARING;

WITNESS STATEMENT (DEFENDANT)

_______________________

1. I, x xx xxx x, the Defendant in this case, make this statement from my own knowledge or experience, except where reference is made to specific documentation, attached in the form of an exhibit, in which case this statement is made in support of that documentation.

 

2. This statement is designed to clarify and elucidate on the Defendants response to the Claimants Application for Summary Judgment against the Defendant.

 

THE CLAIMANTS APPLICATION FOR SUMMARY JUDGMENT

 

3. The Defendant objects to Summary Judgment being awarded to the Claimant for the reasons stated herein.

 

a. The Claimant has failed to fully comply with a request pursuant to s.77 Consumer Credit Act 1974, under which the Defendant requested information specifically outlined within that section, dated 11 August 2007. (“Exhibit 6” attached) Specifically, the Claimant has failed to supply the information required under s.77(1), (terms and conditions referenced within the agreement) s.77(1)(a), s.77(1)(b) and s.77(1)©. Until this information has been provided, the Claimant is in default under s.77(4) and cannot enforce the agreement via the Court; and

 

b. The agreement is improperly executed because it is not in the prescribed format set out in s.60, s.61 and s.64 CCA 1974 and under the Consumer Credit (Agreements) Regulations 1983.

 

The agreement was made before s.15 of the Consumer Credit Act 2006 came into force - therefore, by way of s.11 of the Consumer Credit Act 2006, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force.

 

That the agreement has been improperly executed under s.61 Consumer Credit Act 1974, in that it does not include details of the protection and remedies available under the Consumer Credit Act 1974, as prescribed in s.60(1) CCA 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553).

 

In addition to this, that the agreement has been improperly executed under s.64(5), in that the agreement does not contain statements of the debtors right of cancellation, as required by s.64(1) Consumer Credit Act 1974 and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553) and that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 Consumer Credit Act 1974 and the regulations there under.

 

Any application for an Enforcement Order under s.65(1) Consumer Credit Act 1974, as a result of the improper execution, under s.64(1) Consumer Credit Act 1974, (outlined in paragraph 44, above) must be dismissed by the Court pursuant to s.127(4)(b) Consumer Credit Act 1974.

 

c. The Defendant further makes reference to a case heard in the House of Lords, Wilson v First County Trust Ltd [2003] UKHL 40; in particular, specific reference is made to Paragraphs 49, 121, 123 and 172 of that Judgment, which outlines the Court powers in such circumstances.

 

4. The Defendant avers that the Claimants Application for Summary Judgment under CPR Part 24 should be turned aside as the Defendant has submitted a full defence to the claim brought, offering a full legal basis for each point of defence submitted, so must reasonably be said to have a realistic prospect of defending the entire claim in full.

 

5 The Defendant therefore submits that the Claimant is unable to seek Judgment, Summarily under CPR Part 24, or any Judgment whatsoever, in relation to the agreement for the reasons stated herein and requests that the Court turn aside the Claimants Application for Summary Judgment as a result.

 

 

I, ****, the Defendant in this case, believe that the facts stated in this document are true.

 

Signed:

 

 

 

 

 

****

(Defendant)

 

Dated this, the **** day of ****, in the year two thousand and eight.

Edited by goorooji
left some details in...

Thanks for caring... G

 

It's never as bad as it seems...

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IF WE Have a credit card here then it is section 78 not section 77 ???

 

will others please confirm

 

77. Duty to give information to debtor under fixed-sum credit agreement.

78. Duty to give information to debtor under running-account credit agreement.

:cool: sunbathing in juan les pins de temps en temps

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Yeah, looks good.

 

I can't help but think it would look better with an application for Summary Judgment against them, especially given we're arguing that they can't seek Judgment, Summary or otherwise, if you see what I mean. ;)

 

IF WE Have a credit card here then it is section 78 not section 77 ???

 

will others please confirm

 

77. Duty to give information to debtor under fixed-sum credit agreement.

78. Duty to give information to debtor under running-account credit agreement.

 

Agreed.

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Thanks Fantacy Charges & Chris.

 

So IYHO this statement is good enough as it is, just need to amend the s77 to 78.

 

I need to send it off tommorow, as there is a bank holiday on Monday, and the hearing is on following Monday 1st Sept.

 

Do I need to mention anything further regarding and case law or statuets or anything else?

 

G

Thanks for caring... G

 

It's never as bad as it seems...

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Hi Chris One more thing regarding the request for information in your statement which I am using in point 3a exhibit 6, is it the CPR letter sent in the begining due to insufficient information in their POC?

 

G

Thanks for caring... G

 

It's never as bad as it seems...

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Will I have to know all the case law and CCA law in court, just in case the judge asks technical questians, as I don't know if I will know much of the details...

 

G

Thanks for caring... G

 

It's never as bad as it seems...

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Amended statement please take a look for any changes. Thanks G

 

Claim Number: ********

In the xxxxxxxxxxxx County Court

 

Between:

****

(Claimant)

and

 

xxxxxxxxxxxxxxx

(Defendant)

_______________________

SUMMARY JUDGMENT HEARING;

WITNESS STATEMENT (DEFENDANT)

_______________________

1. I, x xx xxx x, the Defendant in this case, make this statement from my own knowledge or experience, except where reference is made to specific documentation, attached in the form of an exhibit, in which case this statement is made in support of that documentation.

 

2. This statement is designed to clarify and elucidate on the Defendants response to the Claimants Application for Summary Judgment against the Defendant.

 

THE CLAIMANTS APPLICATION FOR SUMMARY JUDGMENT

 

3. The Defendant objects to Summary Judgment being awarded to the Claimant for the reasons stated herein.

 

a. The Claimant has failed to fully comply with a request pursuant to s.78 Consumer Credit Act 1974, under which the Defendant requested information specifically outlined within that section, dated 11 August 2007. (“Exhibit 6” attached) Specifically, the Claimant has failed to supply the information required under s.78 (1), (terms and conditions referenced within the agreement) s.78 (1)(a), s.78(1)(b) and s.78(1)©. Until this information has been provided, the Claimant is in default under s.78 (4) and cannot enforce the agreement via the Court; and

 

b. The agreement is improperly executed because it is not in the prescribed format set out in s.60, s.61 and s.64 CCA 1974 and under the Consumer Credit (Agreements) Regulations 1983.

 

The agreement was made before s.15 of the Consumer Credit Act 2006 came into force - therefore, by way of s.11 of the Consumer Credit Act 2006, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force.

 

That the agreement has been improperly executed under s.61 Consumer Credit Act 1974, in that it does not include details of the protection and remedies available under the Consumer Credit Act 1974, as prescribed in s.60(1) CCA 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553).

 

 

In addition to this, that the agreement has been improperly executed under s.64(5), in that the agreement does not contain statements of the debtors right of cancellation, as required by s.64(1) Consumer Credit Act 1974 and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553) and that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancelable as per s.67 Consumer Credit Act 1974 and the regulations there under.

 

Any application for an Enforcement Order under s.65(1) Consumer Credit Act 1974, as a result of the improper execution, under s.64(1) Consumer Credit Act 1974, (outlined in paragraph 44, above) must be dismissed by the Court pursuant to s.127(4)(b) Consumer Credit Act 1974.

 

c. The Defendant further makes reference to a case heard in the House of Lords, Wilson v First County Trust Ltd [2003] UKHL 40; in particular, specific reference is made to Paragraphs 49, 121, 123 and 172 of that Judgment, which outlines the Court powers in such circumstances.

 

4. The Defendant avers that the Claimants Application for Summary Judgment under CPR Part 24 should be turned aside as the Defendant has submitted a full defence to the claim brought, offering a full legal basis for each point of defence submitted, so must reasonably be said to have a realistic prospect of defending the entire claim in full.

 

5. The Defendant therefore submits that the Claimant is unable to seek Judgment, Summarily under CPR Part 24, or any Judgment whatsoever, in relation to the agreement for the reasons stated herein and requests that the Court turn aside the Claimants Application for Summary Judgment as a result.

 

 

I, ****, the Defendant in this case, believe that the facts stated in this document are true.

 

Signed:

 

 

 

 

 

****

(Defendant)

 

Dated this, the **** day of ****, in the year two thousand and eight

Thanks for caring... G

 

It's never as bad as it seems...

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I have to send off my statement the latest Tursday before 4.45pm special delivery.

 

So if someone would just give it a once over and see if everything is OK.

 

G

Thanks for caring... G

 

It's never as bad as it seems...

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A couple of points:

 

In 3a, you could say that you have been unable to make a complete defence because to do so requires the information you ahve (repeatedly) asked for and that the claimant has failed to supply

 

In 4 the correct terminology is 'struck out' rather than 'turned aside' (similarly in 5)

 

Also in 4, if you make the changes to 3, you wil need to say something like ".....the Defendant has submitted a full defence to the claim brought insofar as he has been able to given the fact that the claimant has failed to provide the requested information..."

Steven

 

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