zhanzhibar vs Amex/AIC/Newman/ Brachers Solicitors

[bazaar]

IMHO youve got to have in your WS that they were already stopped by court with Brachers, so those costs should not be awarded for that, ( second bite of cherry),

Also, They are trying it on with additional agreement terms that do not bear your signature, IE, it beggars belief that they would try to confuse you and possibly the court into thinking they were correct. It makes no difference if they are 'abridged terms', you do not have any concrete proof of an executed agreement as per statutes, their paperwork is in disarray as has been previously proven.

[Rhia]

Just to add further to foolishgirl's post here are the full p46 details of costs capped in Fast Track. My understanding is it's Multitrack where the costs are unlimited.

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part46.htm#IDAMFTQ

 

And no they cannot claim costs that have already been dispensed with you'll need a copy of the court order stating the situation. as to the paperwork they need to be put to strict proof of your connection to these documents. And yes they are trying to confuse you.

[zhanzhibar]

Hiya,

 

I am going to put the WS of Fiona again here coz I think that's where I am going to raise my Schedule of issue:

 

 

Para 2 from the above: can I include this as one of the issue?

 

para 3 from below: another issue; I never received copy of ALL docs in FT1, para 7 ; pages 3-15 i never seen nor received before this. How can this be statement oftruth?

 

 

 

 

 

para 10.10: The abridged terms is on page 47 to 51 ... I didn't notice until today..

Para 10.11: are they allowed to recon an agreemment as evidence? Page 52-56

 

 

 

 

 

Para 24: They blatantly lie as they did not issue the Claim until 29 may 2008. For nearly a year I have been harassed by Newman when I have been requesting the agreement under s78 but they never delivered. How can I use this against them?

 

 

Para 30 below: Can an executed copy be without signtatures from both parties?

 

 

[zhanzhibar]

OK this is what I am going to send them tomorrw:

 

 

 

 

Have I misssed anyhting? What do you all think?

[the_shadow]

Just my opinion but had a quick scan of it... item 3 on issues the question of reconstructed agreements... you MIGHT want to narrow this down as a sentence on a fag packet can be accepted as evidence if the judge so wishes....You could qualify the reconstruction against the CCA1974 and instead say:-

 

Can a reconstructed agreement be brought as evidence in court for the purposes of section 61 and others of the Consumer Credit Act 1974

 

 

Edit:or you may want to keep that for your skeleton

 

Just a quick thought.. oh and I know time is precious but read up in Carey vs HSBC on reconstructions to be able to re-enforce the courts discretion on accepting/denying reconstructions for non s78 responses.

 

S.

[zhanzhibar]

I am not sure whether to put it here now or to leave it as skeleton argument for later. What do you all think?

I got till 10 this morn to decide becoz I told Pishcon I let them know whether I agree with the issue & sent them mine. I might just sent it to them & see whether they agree or not with that 3rd issue.

 

I think I have to read up Carey v HSBC & Amex v Brandon case for next week STAY hearing.

Edited October 13, 2010 by zhanzhibar

[zhanzhibar]

Submitting these to Mishcon via e-mail this morning.

 

 

 

Should I leave point 3 to be skeleton argument rather than issue..owh well.. I'll wait & see what they say 1st this morning.

[Rhia]

Sorry Zhan I missed your deadline. However paras 4 & 5 (of theirs) are utter gibberish. Particularly para 4 which says you signed in 2006 and then in the next sentence you signed in 2003.

 

There is only one way to establish the origins of this and that is to use the Civil Evidence Act to demand the original or a fully certified copy of the original is produced for inspection in court. S78 interpretations in the Carey case said it was OK for creditor to reconstruct basically to provide a copy for info purposes but if you look further the Judge said that a copy or the original is required in court cases or serious dispute.

 

That's for the next stage though.

[zhanzhibar]

OK I think I am in trouible now... Mishcon replied..

Dear Madam,

Your comments are noted.

Please note that the purpose of these documents is to assist the Court in identifying the issues to be determined. They are not intended to be pleadings or arguments as to the merits of the claim. Further, the Court intended for the parties to agree the documents and file a single version rather than a copy for each party. With this in mind, the drafts we proposed were intentionally non-partisan in nature and set out the facts and issues to be determined by the Court rather than the history of the claim. We do not therefore agree to your proposed drafts.

After considering your comments we have made the following amendments to the documents we proposed:

Case Summary

Paragraph 1 - the relevant sentence now reads: "The Defendant entered into the agreement electronically via the internet, used the credit card provided by the Claimant to pay for goods and services but did not, towards the end of the Agreement, make the minimum payments..."

Paragraph 2© - reference to the "Defendant" has been replaced with reference to the "Claimant".

Schedule of Issues

Paragraph 1.2 has been amended as per your request.

Revised copies of these documents are attached.

Please confirm if you now agree to these documents.

Please note that, in order to file these documents with the Court by the required deadline, they will be sent to the Court by 3pm today.

Yours faithfully

 

 

So what if I disagree with their issue & case summary?

[bazaar]

Does paragraph 1 include the wording according to the terms and conditions in the executed agreement??

Theres more, but Im sure you know, they are going to send a self serving piece of asswipe paper.

So your points need to be there.

[zhanzhibar]

I've e-mailed them twice after their e-mail asking the wording to be more non-partisan:

 

Dear Sir

In that case I believe to be non-partisan

Schedule of issue

1) Is there an enforceable agreement as prescribed under Consumer Credit Act 1974 between the Claimant and the Defendant? - this should replace your point 1 and 1.1 as it is more general

More to come

 

Dear sir,

In the spirit of non-partisan, point 1.3 of your sch of issue should be replaced by these

1.3) Does either party have the right to terminate the contract at any time pursuant to the purported Agreement being at all times a Consumer Credit Agreement (plus perhaps and consequently regulated by the Consumer Credit Act 1974 and amendment etc)

1.4) In the event of 1.3 being proven then DID the Claimant issue a Default Notice compliant to the processes required in the CCA1974

 

 

They don't like to change their "non-partisan view" of course & reply

Dear Madam,

For the sake of efficacy, please send all of your suggested comments at the same time rather than on an ad hoc basis.

Regarding your comments:

Para 1 - In our opinion, the question for the Court to answer is not whether there is an enforceable agreement, but whether or not the Claimant may actually enforce the agreement. It would be pointless if the Court did, for example, decide that the agreement was enforceable but made no comment as to whether the Claimant was entitled to actually enforce it. The question are to whether or not you signed the agreement is therefore a live issue for the Court to consider.

We appreciate your comment regarding the generality of your proposed wording, however, the purpose of these documents is to assist the Court in pin-pointing relevant issues without being too specific so as to litigate the claim on paper. We do not therefore agree with your proposed wording.

Para 1.3/1.4 - Your proposed wording suggests that you do not agree that either party had the right to terminate the agreement at any time. We do not agree with this suggestion; the Claimant maintains that it is entitled to terminate the agreements. In our view, the question is whether the Claimant was required to serve a Default Notice prior to termination, however, in view of your comments we would suggest:

"Did both parties have the contractual power to end the Agreement at any time? If so, was the Claimant required to serve a Default Notice before terminating the Agreement and if so, did the Claimant serve a valid Default Notice on the Defendant?"

 

Although not ideal, given the imminent deadline to send these documents to the Court, we would suggest that, if the proposals are not agreed, each party send a separate version to the Court.

Yours faithfully

 

 

& This is Pishcon V3

 

 

So now what do I do?

[bazaar]

Well, theyve just bloomin well answered that, they are now saying that each party should send their own, I think they were on a little fishing trip to see what youd argue.

So If I were you, Id put your version down and send to court asap, Dont get involved with these idiots anymore, they are trying to con you, stick to your arguments, thats why its got this far in the first place

[bazaar]

their point 1.2 is flawed, because they dont mention that they are supposed to sign any executed agreement as well.

[zhanzhibar]

TQ Bazaar for your input. might have to rethink my case summary & schedule of issue.

 

In the meantime would appreciate it if somebody could comment on my queries below re the listing Q itself

 

 

 

 

Queries:

1) on A(1) I said yes because its about directions that are already given but what about A(2) additional directions? I said Yes on this mainly on the basis of the STAY application that I put through which the hearing is next week on the 22nd. Shoudl A(2) be a yes or a no & if it a YES what shall I direction shallI write.

 

2) In section F, if the answer is yes to A(2) above does that mean that I have put an application and pay fee for additional directions even though I have already paid for STAY application? At the moment I just ticked draft order & the estimate costs.

 

Help! Comments please on the above

 

 

Submitting these to Mishcon via e-mail this morning.

 

 

 

.

 

Might have to rethink about the 2 schedule above after putting kids to bed. Would appreciate any pointers...

 

and here's my estimate of costs.. is this ok do you guys think? Looks fair unlike theirs

 

 

 

[zhanzhibar]

Am going to put a point number 3 for my case summary.

 

3. The Claimant disagree with the judgment in 2 above

[Peterbard]

Hi

Just read te whole thread firstly must apologies for coming in so late on this with such a negative vibe.

I think you have to stand back an look at what has been discovered on this thread. Firstly an agreement for running account credit can be terminated at any time.

Secondly that a termination on default does not mean that the contractual right to terminate does not exist they can terminate at any time.

This to me means that they could if they want terminate by breach any time even after they have exercised there right to terminate under a contractual provision. This is certainly supported by contract law.

But OK say I am wrong and the contractual termination is valid and prevents the unlawful termination, doesn’t that mess up the accepting the unlawful termination argument.

In reality I think the court will say that the agreement could not have been terminated by breach. I think the best that hou n hope for is the case being thrown out for a ineffective DN and then the case being refilled. This is in fact happening as we speak over on CAG, the original costs are being added to the new costs and interest is also being added post the first termination.

All I am saying is be very careful

Peter

[nodefaults2010]

zhanzibar - having read through many of peterbard's posts on other topics, I would not give too much weight to what he says. He has consistently tried to persuade other Caggers that they had no or, at best, a weak case. I think (and I think many other much more experienced Caggers will agree) that you are still in quite a strong position and Amex (and their legal counsel) knows it.

 

Of course you have to tread carefully with any case that goes to court, particularly in the murky waters that are currently the environment of consumer law and with the many judicial sharks that form part of the judge lottery!! But your case is fundamentally very strong, even without the DN argument (which should in the end be proved right too, when they see sense to overturn the Brandon ruling, hopefully and likely in the near future). Good luck with it all and stick to your guns, you have done brilliantly so far and inspire many others.

[Peterbard]

HI

MMM

Yes indeed I do tend to de bunk the daft ideas on here, seems to be my calling. Unfortunately I think you will find I am usually correct.

My advice is don’t take anyone’s word for anything just gather the information and make your own mind up.

Bear in mind that his argument has never been proven or seriously argued in court ofn a credit agreement, the act has been in force since 1983.

I don’t know what is meant by experienced Caggres I have been on here a fair while and most of my knowledgeable contemporaries would not even comment on such a barmy concept as this.

If you mean Caggers with a lot of blips under their names I think you will find that they have those because in general they tell people what they want to hear, by the time the sh1t hit’s the fan they have moved on to the next victim.

Any way have a look at the threads I have started and judge for yourself.

As regards your claim I really do wish you luck with it and I earnestly hope you prove me wrong.

Peter

[manchesteruni]

zhanzibar - having read through many of peterbard's posts on other topics, I would not give too much weight to what he says. He has consistently tried to persuade other Caggers that they had no or, at best, a weak case. I think (and I think many other much more experienced Caggers will agree) that you are still in quite a strong position and Amex (and their legal counsel) knows it.

 

Was Peter Bard wrong on Slater v Egg ?

 

Of course you have to tread carefully with any case that goes to court, particularly in the murky waters that are currently the environment of consumer law and with the many judicial sharks that form part of the judge lottery!! But your case is fundamentally very strong, even without the DN argument (which should in the end be proved right too, when they see sense to overturn the Brandon ruling, hopefully and likely in the near future). Good luck with it all and stick to your guns, you have done brilliantly so far and inspire many others.

 

Can you point out what you believe makes the case 'fundamentally very strong'' apart from the DN argument pls. My reading of the case is that the DN argument is the make or break issue.

 

Thanks

[nodefaults2010]

manchesteruni - perhaps you could enlighten me then on how Amex will prove zhanzhibar had a valid agreement in place at the time when indeed all they have is an internal form and a reference to a internet location that they have no way of proving if it relates to any computer he may or may not have used? Or how they can proceed to enforcement without a valid true copy of an executed agreement? thanks in advance for your input and for edifying me.

 

And without going back over numerous threads, as I am not going to get in a tit for tat war and quote any of peter bards previous posts, I know for a fact that I have read many of his previous posts and that they are in the main extremely negative and often without foundation. At one point he was arguing that the CAB was the definitive source of info for the consumer and that their info was the correct 'go to' source for consumers (!) That is utterly risible and any attempt to argue differently should be met with the contempt that it deserves.

 

peterbard - As to Caggers being some sort of ethereal or intangible concept, it really is not and anyone should be able to grasp the meaning of this with a passing thought. I am quite certain there are many, many knowledgeable Caggers who disagree with you strongly and would give this comment if they could be bothered to any more than they previously have in other threads you have entered into. Irrespective of this, I find your opinion deeply flawed but, hey, let's just wait and see the outcome.

[nodefaults2010]

oh, one more thing, manchesteruni, I forgot to add a childish smiley face like you did, so here you are, just for you:

[zhanzhibar]

Hi

Just read te whole thread firstly must apologies for coming in so late on this with such a negative vibe.

I think you have to stand back an look at what has been discovered on this thread. Firstly an agreement for running account credit can be terminated at any time.

Secondly that a termination on default does not mean that the contractual right to terminate does not exist they can terminate at any time.

This to me means that they could if they want terminate by breach any time even after they have exercised there right to terminate under a contractual provision. This is certainly supported by contract law.

But OK say I am wrong and the contractual termination is valid and prevents the unlawful termination, doesn’t that mess up the accepting the unlawful termination argument.

In reality I think the court will say that the agreement could not have been terminated by breach. I think the best that hou n hope for is the case being thrown out for a ineffective DN and then the case being refilled. This is in fact happening as we speak over on CAG, the original costs are being added to the new costs and interest is also being added post the first termination.

All I am saying is be very careful

Peter

 

TQ for your advice PB. They are noted. Rather than talking about DN which we can only talk about if there is a validly executed agreement, I would appreciate it if you can comment on whether or not I do have an agreement/contract in the first place because all I know is my so-called agreement is made of these

 

a) an intranet e-application form where even their 2 legal firms cannot agree as to when allegedly I applied for the card

b) a blank T&Cs with none of my name nor address

c) an IP address which as we all know is always changing

 

d)and now suddenly in the disclosure of evidence toegther with their WS, they also introduced another reconstitute T&Cs which is also blank, the only difference is that it has a box on the signature ( for ticking as oppose to signing) which is also blank i.e not ticked.

 

So now, let's forget about the DN or about the termination for a while and focus on this issue.. can anybody tell me

 

1) How they can suddenly bring in a new evidence i.e the recobtsruct T&Cs with still no names, no signature. not even a tick

2) Whether or not I have an agreement?

Edited October 18, 2010 by zhanzhibar

[the_shadow]

If the "agreement" they have shown doesnt meet the test in Carey then imvho you need to point this out.

 

S.

[Drowning but not sunk...]

I wish you the best of luck with your case subbing- I hope the brandon case result gets chagned and you win I have £90,000 mainly on faulty DN's so vested interest... Once again all the best..

[liquidauctions]

any news on this?