i have just received court papers in respect of a debt for 22249.82, tesco personal finance via incasso solicitors.

[looloo200]

today at least the judge has changed the date of the hearing for me until 18 december. Still could use some help with the witness statement. does anyone know the format it should be and what to include.

[phatram]

bump:)

[AndyOrch]

Hi Looloo

 

Sorry for the delay in responding. Here is an example of a Witness Statement from another thread.You will have to edit to suit but it will give you an idea of what is required/expected from the submission of the above.

 

 

In the xxxxxxxx County Court

Claim number

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

xxxxxxxx - Defendant

 

 

--------------------------------

 

Witness Statement

 

-------------------------------

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement regarding my defence to the claim made by xxxxxxxxxxxx

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

5. In respect of that which is denied, on xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit theoldie1 &2

 

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

7. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I draw to the courts attention that this case should not be brought before the court as facts stand an Act of Parliament, in this case the Consumer Credit Act 1974, plainly enacted to protect the Consumer precludes a creditor bringing an action before the court where t hey have themselves failed to discharge their obligations under the Act. Therefore I suggest that the only just action that can be taken is the claimants case be struck out forthwith

The relevant Act of Parliament in this Case

 

9. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

10. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

11. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The Request for Disclosure

 

12. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

13. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence marked theoldie 03)

 

The importance of a copy of the credit agreement and its production before the court

 

14. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

15. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

16. 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;

5. 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

 

17. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

 

18. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

19. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

20. Notwithstanding point 19, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

21. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 14 to 20 of this defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action and it is requested that the claimants case be dismissed until such time as they comply with the S78(1) request made on xx/xx/2007 as laid out in point 5,6 7& 8

The courts power of enforcement

 

22. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

23. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

24. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

26. Therefore I respectfully request that if the court does not dismiss the claimant s case as laid out in point 21, that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

27. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

 

Conclusion

 

28. The claimant's case cannot succeed as matters stand. It is averred that the claimant and its representatives have acted unreasonably when dealing with this dispute. The claimant transferred the debt to ************ while the account was subject to a dispute, which is a clear contravention of the Office of Fair Trading Guidelines on Debt collection.

29. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

30. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

31. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

32. Should the court disagree with the suggestion to strike out the claimants case for the grounds set out. I respectfully request that the court allow me to amend my defence when the claimant produces the requested documentation and I am given sufficient time to inspect the documentation

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Dated the xxth day of xxxx 2008

__________________

 

 

Just post if you are unsure of anything

 

Regards

 

 

Andy;)

[looloo200]

Hi Andy and thanks, I have received as you know two copies of the credit agreement, they are true legible copies. do I omit this section? I have received a statement , showing all payments etc, but there is no name and address on them, just an account number and some transactions I dont know what they are, they dont say fees. No other fees have been added apart from sols. How can i answer this section? I still have not received copy of default notice, just one screen printout, no acc number on etc saying one was despatched June 2006, that remains to be seen. How can i amend this section. ??

 

Regardin the hearing now in December, how can I answer to their request for summary judgement. Am i replying they may well have true cca but i have not really had answer regarding fees/charges, never recd default notice, not entitled to interest re ccAct, they have failed under pre Action protocols, I still haven t received any disclosure statement from them. Do I mention we previously had reduced payments and they have acted unreasonably by bringing the claim. I feel I dont know how to answer their application for judgement, or what to bring to the judge s attention. Does that mean they are likely to get judgement that day and there be no trial february ?? Sorry alot of Qs. Thanks

[looloo200]

b u m p

[looloo200]

Hi Andy and thanks, I have received as you know two copies of the credit agreement, they are true legible copies. do I omit this section? I have received a statement , showing all payments etc, but there is no name and address on them, just an account number and some transactions I dont know what they are, they dont say fees. No other fees have been added apart from sols. How can i answer this section? I still have not received copy of default notice, just one screen printout, no acc number on etc saying one was despatched June 2006, that remains to be seen. How can i amend this section. ??

 

Regardin the hearing now in December, how can I answer to their request for summary judgement. Am i replying they may well have true cca but i have not really had answer regarding fees/charges, never recd default notice, not entitled to interest re ccAct, they have failed under pre Action protocols, I still haven t received any disclosure statement from them. Do I mention we previously had reduced payments and they have acted unreasonably by bringing the claim. I feel I dont know how to answer their application for judgement, or what to bring to the judge s attention. Does that mean they are likely to get judgement that day and there be no trial february ?? Sorry alot of Qs. Thanks. hope you around

[AndyOrch]

Hi Andy and thanks, I have received as you know two copies of the credit agreement, they are true legible copies. do I omit this section? Well at the the time of your defence submission they were in default so re word it to imply same however they have not still fully complied as you state DN/StatementsI have received a statement , showing all payments etc, but there is no name and address on them, Could be anybodys without the statements in the official layout they are meaningless just an account number and some transactions I dont know what they are, they dont say fees. No other fees have been added apart from sols.Thats why they are manually produced you dont think they would should penalty charges it may harm their case How can i answer this section? I still have not received copy of default notice, just one screen printout, no acc number on etc saying one was despatched June 2006, that remains to be seen. How can i amend this section. ?? No DN has ever been recieved and a screen print will not suffice therfore how can they prove that the account as been terminated they will need it if it goes to trial stick at this Loo this is one of your main keys

 

Regardin the hearing now in December, how can I answer to their request for summary judgement.They have still not fully complied with the Court Order Am i replying they may well have true cca but i have not really had answer regarding fees/charges, never recd default notice, not entitled to interest re ccAct, they have failed under pre Action protocols, I still haven t received any disclosure statement from them.Yes Do I mention we previously had reduced payments and they have acted unreasonably by bringing the claim.No not yet I feel I dont know how to answer their application for judgement, or what to bring to the judge s attention. Does that mean they are likely to get judgement that day and there be no trial february ?? No Sorry alot of Qs. Thanks. hope you around

 

 

 

You will just have to ride this for now Loo until the hearing.At the hearing you need to state the above points and your arguments as to why you can not settle this matter and if the Court agrees the CCA is infact enforcable then you need to say about payment plans their behaviour in the matter etc.At the end of the day LooLoo even if you lose you will have had your say and done everything possable by yourself in this matter.If they are successful in attaing a CCJ it will be with you for 6 years but the payment will be set at an affordable amount ...Which on the face of said matters is all you ever wanted in the first place.

 

I trust the above helps

 

Regards

 

Andy

[looloo200]

Hi, thanks for your reply, do I have to quote all the law cases ? Will you give the witness statement a once over before I send it ?

[AndyOrch]

No LooLoo but would be handy if you had them to hand for your reference Ie Default Notice.Afterall you are LIP.

I would be delighted to check it over for you

 

 

Andy

[looloo200]

Hi, just to recap, my witness statement successfully submitted, noted in it that claimant s never submitted to me disclosure satement or their witness satement as per court order. Still only ever received copies of screen printouts regarding Default Ntices.

 

However due in court in two weeks for 30 min hearing regarding claimants Application to get my defence struck out by the judge.. Just wanted any advice as to what i should take with me, what to say etc.Would be grateful.

[looloo200]

b u m p

[looloo200]

Hi, just to recap, my witness statement successfully submitted, noted in it that claimant s never submitted to me disclosure satement or their witness satement as per court order. Still only ever received copies of screen printouts regarding Default Ntices.

 

However due in court in two weeks for 30 min hearing regarding claimants Application to get my defence struck out by the judge.. Just wanted any advice as to what i should take with me, what to say etc.Would be grateful.

 

 

Andy, can u please offer any advice??

[AndyOrch]

Hi Looloo

 

Can you possably post a copy of your Witness Statement?

The case hearing of the Claimants Application to strike out your Defence is based on their witness statement,which I understand you have never recieved.

Contact the Court tomorrow and request a copy also contact their Sols and request same.You need to have this and give us time to trash it before any hearing or you will be entering into somthing you have no knowledge of.

 

Regards

 

Andy

[looloo200]

I will do wen i have typed AN. This is what AN says.

 

dated 24 Sept o8.

 

what order are you asking the court to make and why? The defendant s defence to be struck out and there be judgment for the Claimant. pursuant to CPR 3.4(2)(a) the Claimant respectfully submits that the Defendant's Defence discloses no real grounds for defending the claim and that the defence be dismissed accordingly pursuant to CPR 24.2 (a) (ii) and (b) as the Defendant has no real prospect of defending the claim and there is no other compelling reason why the claim should be disposed of at trial.

 

How do you want the application dealt with At ahearing

 

Give details of any fixed trial date or period 9 feb 2009 to 27 feb 2009

 

 

Who shoud be served with this aplication The defendant

 

what info will you be relying on in support of your application The evidence set out below

 

 

1. the claimant refers to the contents of its A Q

 

2. The defendants defence discloses no reasonable grounds for defending the claim and that the same be dismissed accordingly pursuant to CPR 24.2 (a) (ii) and (b) as the defendant has no real prospect of defending the claim and there is no compelling reason why the claim shoud be disposed of at trial.

 

3. The claimant attaches to this application:

a. copy loan agreement between claimant and defendant dated 8 dec 2004.

b. screen prints from the claimant s debt manager production system confirming a default notice was issued on 15 June 2005 and a formal demand was issued on 20 Oct 2005. the claimant does not keep copies of default notices as they are sent out automatically from the computer system.

 

4. for the avoidance of doubt, the claimant s claim relates to the Defendant s outstanding liability under a personal loan account, acc num xxxxx. sort code xxxx. The account was opened on 15 dec 2004 and the loan was for the principal sum of £24k, plus interest in the sum of £6k totalling £30 k. the defendant was due to make mnthy payments of £362. to repay the debt. The defendant has been making monthly pymnts of £180 to the bank which have been taken into account when calculating the outstanding debt. The amount outsanding at the date of issue was £22, 892.20 and at the time of making this application is £22 793.80

5. The defendant s claim in relation to penalty charges is wholly unparticularised and, in any event , given the nature of the account can have no merit

 

The Claimant refers to the defendant s attention to the provisions of CPR 24.5

 

 

Andy, this is what the hearing is for on 18th December, i will post a copy of my witness statemnt shortly.

 

 

I have today also receivd a letter from court advising me that the date for filing listing questionnaire has been changed to 22nd Dec rather than 17th December, obviously after this hearing. they are after summary judgement, does that mean they could win on 18th December and not go to full trial??

[looloo200]

today s hearing was adjurned with permission of the judge at the request of the claimant, at the very last minute (i was advised by the court yesterday).. The claimant asked for it to be rescheduled for first date available, 28 days after 5 january due to it being the SEASON OF GOODWILL !! . although i suspect it being somehting to do with the claimant s solicitor s xmas hols. I am fuming ! I wanted it over with, this is just an Application Notice hearing re them striking out my defence, the trial window is early Feb, i dont undersand what is going on. I m really stressed and frightened.

 

 

Please again, i need to be prepared for this an hearing when it appears, please advise what i should take with me and be prepared to say. My biggested weapon, is no real proof of default notices, and unexplained transactions on the statements. Please, please help

[surfaceagentx20]

It maddens me when that happens. It wouldn't happen if you were legally represented. Supposing you'd got counsel lined up? It's totally bad form, a breach of the overriding objective and the court should hang its head in shame.

 

x20

[looloo200]

hi and thanks, I was so cross, still am, what do you think they are up to, i have even filed my, pre trial questionnaire. You know they have never adhered to any of the order the dj made in august, still no witness statement, disclosure statement, when i filed my pre trial q on 15th decemer, i did attach a letter to the case manager, complaining about this, could this be the reason why ??. Please can you help me be prepared , my biggest tool is as i said screenprintouts only regarding default notices.

[looloo200]

bump

[AndyOrch]

Hi Looloo

 

So you have still never recieved a copy of their Witness statement?

 

 

Andy

[looloo200]

hi andy, no still no witness statement, or disclosure statement, they have writen to me sayin they wont issue them until this hearing to strike out my defence is over. not sure how they can get away with that. i have written to the case mnager complaining bout that. i have had notification the hearing is now 8th January. still not sure what to say at this or wot to arm myself with.

[looloo200]

been to court today, they got their way and got my defence struck out, judge was having none of points re default notices. However, he was nice and wanted to help me and he granted i pay 170 p m from 1 feb, not the forthwith judgement they wanted. They got costs but not as much as they wanted. The solicitor appealed his descision and although he listened to her points re my house and equity he stated that he couldnt see any evidence in front of him. He looked at my up to date income and exp and said he was excercising his right of discrestion and turned down their appeal. however he did say they could appeal to a circuit judge. Anyone one know what implications of this are. Why cant they just let it rest. The judge brought up that the loan was Unsecured, they argued it wd take to long to pay off, he doesnt think so.. I had no choice but to admit liability in the end but I think the fact i had had a reduced payments agreement with them and that all along i have maintaned payments, went in my favour. Please please help what can they do now. What are the implications of a an appeal to a circuit judge by them. i can t take much more, it was horrifying bt i kept calm and spoke up for myself and the judge acknowledged this.

[looloo200]

bump

[looloo200]

had hoped someone would reply.. Is it worth applying for a set aside?

[MARTIN3030]

Sorry to hear bout this result.

Team is a bit thin on ground as its Saturday.

I am just posting here to let you know team aware.

Please be a little patient.SX20 will also want to comment I think.

[caro]

Hi looloo. Like most of the peeps on this site I'm not an expert, but as a layperson there are a few things I think I'd be mulling over if I was in your position. I'm not familiar with your thread, so forgive me if some of the points have already been covered.

 

1. What was the best that you'd hoped for after the hearing?

 

2. Does the amount you have to pay seem reasonable and can you manage it?

 

3. Could the judgment have been worse? Is it better than it could have been?

 

3. If you decide to apply the judgment to be setaside, what grounds could you use?

 

4. Could you handle the pressure of pursuing it? If you have a family, what are the implications for them?

 

5. What are the cost implications?

 

6. If you decide to pursue this route then you will be driving it. Would you be able to access sufficient information and knowledge to build a strong case for the judgment to be set-aside?

 

7. Should you seek legal advice before making a decision?

 

Regarding the leave to appeal to a circuit judge, this is out of your hands and at this stage I think there's probably not too much you can do about whether or not they want to go down this route. I wonder if the judge was actually challenging them to do this? From what you say they've clearly made mistakes which they may not like held up to scrutiny by a higher court.

 

I tend to think that there's no point in worrying about something that might never happen. If and when you hear they're going to appeal, that's the time to start worrying about it IMHO.

 

You've been through the mill lately. Give yourself a few days to recover and mull things over before you make any decisions.

Edited January 11, 2009 by caro