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[pompeyfaith]

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[pompeyfaith]

Anyone seen Andyorch about ??

[pompeyfaith]

Hiya All

 

I got this letter today saying my disclosure list does not comply to CPR 31 any one know what they are talking about as ive disclosed everything that i will be reliant on

 

Only thing i can thing off is the agreement, statements, DN, LBA which i dont have as they have not responded to my CPR 18 and S.A.R.

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/standarddisclosureresponce.jpg

 

I also got there disclosure list today on the letter it had a date of 27/11/2008 but the disclosure list was dated the 24/11/2008 but it had to be with me by the 26/11/2008 by order of the court.

 

Im guessing they forgot and only relised when they got mine.

 

Regards

 

Pompeyfaith

Edited November 30, 2008 by pompeyfaith

[pompeyfaith]

bump

[caro]

Have you put absolutely everything you have on your disclosure list? Any correspondence you have should be included. Have you got any statements or any terms and conditions etc

 

 

You really must include everything you have, even if it may not be good for your case. I believe your case is in the fast track, and if Optima know you have something you haven't disclosed it might go against you in court. Being in the fast track, with the possibility of costs against you, you can't afford to make any mistakes.

 

I notice it's not the court saying your list doesn't comply. I suggest that you contact the court on Monday and see if they believe it's acceptable.

Edited November 28, 2008 by caro

[gizmo111]

What have you actually put in your list?

[caro]

Did you put in everything Andyorch suggested, and did you add any extras?

 

 

Example Claim number: 8Xxxxxxxx

 

 

 

 

 

 

 

 

 

XXXXXXX – Claimant

 

 

 

 

 

 

And

 

 

 

 

 

 

Pompeyfaith – Defendant

 

 

 

 

 

 

 

 

 

 

 

 

DISCLOSURE BY LIST - of – xxxxxxx – DEFENDANT

 

 

 

 

 

 

 

I, name, of , my address being the defendant in this case, intend to rely on the following documents in court:–

 

1. Correspondences

 

 

(A) Copy of County Court Claim form issued by Claimant, dated xx xxxxxx 2008.

(B) Copy of formal request, dated xx xxxxxx 2008, from xxx to Claimants Sols. requesting under the Civil Procedure Rules for disclosure of documents upon which the claimants are reliant on in court, with proof of posting and delivery.

© Court Document: Acknowledgement by court of receipt of defence entered, dated xx xxxxxx 2008.

(D) Court Document: Advising Allocation Questionnaire enclosed, dated xxth xxxxxx 2008.

(E) Copy of Allocation Questionnaire completed by xxxxxx (with additional information sheet) as returned to court, dated xx xxxxxx 2008. With proof of posting and delivery.

(F) Letter from Sols to xxxxxxx, acknowledging receipt of letter listed at (B), dated 18th February 2008.

(G) Court Document: Notification of Allocation to the Fast Track, with Orders, dated XXXX 2008.

 

 

2. Authorities and Case Laws

 

(AA) Civil Procedure Rules, Rules & Practice Directions.

(BB) Consumer Credit Act 1974

(CC) Consumer Credit (Agreements) Regulations 1983

(DD) Consumer Credit (Agreements) (Amendment) Regulations 2004

(EE) Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

(FF) The Administration of Justice Act 1970

(GG) The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

(HH) Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

(II) Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

(JJ) Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

 

 

Statement of Truth

 

I certify that I understand the duty of disclosure and to the best of my knowledge I have carried out that duty. I further certify that the list of documents set out in this List is a complete list of all documents which are or have been in my control and which I am obliged under the order to disclose.

 

I believe the facts stated within this document to be true and the document comprises of two pages.

 

Dated this xxrd day of month 2008.

[pompeyfaith]

Hiya Caro

 

I have disclosed everything Andyorch put in that list I cannot disclose agreement,statements,default notice or LBA as i have not to date received those all i had was a letter from Optima saying that they have requested those documents from MBNA and that they will be forwarded to you which they never did and the letter was headed without prejudice so i cant use it in court delaying tactics i think.

 

There is one letter i can disclose though although i don't think optima will like it as its a letter they sent to me but was meant for one of there employees detailing a pay rise lol.

 

should i disclose this as they have broken data protection act and it does show the court how they operate not.

 

Regards

 

Pompeyfaith

Edited November 30, 2008 by pompeyfaith

[pompeyfaith]

bump

[caro]

I don't think you should include the letter as it isn't relevant to your case. Did you contact the court to ask them if your disclosure list was ok? Tell them what the solicitors have said and tell them you don't understand why they are saying that. Most court staff seem to be helpful, and should be familiar with procedures.

[pompeyfaith]

Hello All,

 

Hoping for a bit of help here firstly i did contact the court regarding my disclosure list and they said providing you have disclosed everything that you will rely on that will be ok.

 

Now After 6 mths i have finally got a copy of the agreement and default notice although it dont look like it will stand up in court perhaps someone could have a look at it and post there thoughts.

 

I also got a bundle of statements again something is wrong as there are many missing and some optima have sent me 2 copies.

 

I also got from the court just before Xmas the Pre-Trial checklist anyone got a link to how i fill this in.

 

Finally can someone tell me at what stage does my full defence have to be at court.

 

In there responce to my CPR18 request it states that they have previously supplied me with a copy of the agreement, that is a load of bull.

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/optimaresponsetoCPR18page1.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/optimaresponsetoCPR18page2.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/optimaresponsetoCPR18page3.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/MBNAAGREEMENT.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/MBNADEFAULTNOTICE.jpg

 

 

Thank You

 

Regards

 

Pompeyfaith

[pt2537]

the default sucks,

 

You have breached clause 8? really and where exactley is clause 8 on that agreement?

[pompeyfaith]

Good question pt thank you although the agreenent i could not read very poor copy if it is a genuine copy that is they also say that the t&c will follow i thought they had to be attached to the agreement?

 

Also as i thought i did not tick the box for PPI although they have been taking it from day one.

 

Regards

 

Pompeyfaith

[pompeyfaith]

PLEASE PLEASE someone help me out here this is all lies they cannot get away with this surely if they do ive lost faith in the British justice system.

 

I had a hearing set for march 09,but today i have received though the post an N244 requesting a trial without a hearing on the 15th january 09 at 4pm

 

I only got a response to my CPR18 yesterday as posted above which was only 6 mths late as i applied for it July 08 the agreement is shoddy to say the least not seen a legit copy of of yet there are no T&C attached i was charged court fees on the MBNA card yet they are appling for them again the N244 was dated the 13/11/08 yet ive only just got it

 

Ive not yet filed my full defence only a holding defence on one of the exibits it says Further to your recent commumication please find enclosed copy of documentation this is a lie i have recieved no documentation from optima legal before yesterday.

 

Where do i go from here please i have 2 weeks now to get this in order.

 

Thank You

 

Regards

 

Pompeyfaith

[pt2537]

this doesnt make sense?

 

A trial without hearing? there is no such thing

 

What does the application say exactley? im guessing that this is an interpretation problem, unless they have applied for Summary Judgment

[pompeyfaith]

Sorry PT yes a summary judgement words of which are:

 

That Summary Judgement be granted against the defendant pursuant to rule 24 of the CPR as the defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the cae should be disposed of at trail.

 

Regards

 

Leon

[pompeyfaith]

Surely the above agreement will not stand up ?

[pt2537]

Sorry PT yes a summary judgement words of which are:

 

That Summary Judgement be granted against the defendant pursuant to rule 24 of the CPR as the defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the cae should be disposed of at trail.

 

Regards

 

Leon

Right, ok, not a problem

 

we can deal with this

 

you need to submit a witness statement to the court in opposition of the application

 

i think that the fact the deafult notice makes allegations that are incorrect and that if they terminated on a defective default they really will struggle

 

I do believe you are quite local to me arent you, i may, but cant promise, be able to attend the hearing with you to try and give them hell.

 

what track are you on? small claims, fast or multi?

[pompeyfaith]

Thank you very much PT it is fast track

[pompeyfaith]

If you want to see any of the exibits just shout and ill post them up on photobucket

[pompeyfaith]

i gotta pop out now a collect my sister for a party tonight at the royal british legion but ill be back in 1 hr once again thank you so much i have high blood pressure (hypertension) symptom of my stroke i had and it is really beginning to worry me now and send my blood pressure up.

 

Regards

 

Pompeyfaith

[pt2537]

 

On behalf of: Defendant

Witness: [initials and surname]

Number: [1st]

Exhibits: PF1, PF2,PF3

Date:

 

IN THE XXXXXXXXXXXXXXX COUNTY COURT Claim No:

 

 

BETWEEN

[________]

Claimant

and

[________]

Defendant

 

 

 

WITNESS STATEMENT OF POMPEYFAITH

 

I, [NAME] of XXXXXXXXXXXXXXXXXX will state as follows:

 

1. I am a [state occupation or, if none, description, e.g. housewife, retired ...] defendant in these proceedings .I make this witness statement in opposition to the claimant's application for summary judgment.

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. There is now produced and shown to me a bundle of documents marked "PF1". The exhibit PF1 contains copies of the credit agreement and Default notice served by the claimant

 

4. There is now produced and shown to me a bundle of documents marked "PF2". The exhibit PF2 contains copies of the Judgment in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

 

5. There is now produced and shown to me a bundle of documents marked "PF3". The exhibit PF3 contains copies of the section 87 88 and 89 Consumer Credit Act, Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561) and Regulation 2 of Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557)

 

6. The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. The applicant has failed to supply any evidence which supports that the claim should be disposed of without trial. The respondent would seek to draw to the courts attention the following matters

 

7. The applicant / claimant failed to supply the respondent/ defendant any documents which the applicant mentioned in their particulars of claim and which were central to the applicants case. The respondent asked for the documents, which were pleaded in the claim on XXXXX, but the applicant failed until XXX to supply these documents. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence

 

8. The applicant has now disclosed a copy of the agreement and the default notice (exhibit PF1), which its claim is based upon, from the brief time that I have had to digest this information I wish to raise an issue, which I would expect to expand upon at trial. The default notice is materially defective, the notice states that I have breached clause 8 of my agreement, however if we look at the agreement there is no clause 8.

 

9. The consumer credit act 1974 s87 & 88 (Exhibits PF3) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states

 

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

10. At schedule 2 Para 3 of the regulations it states the following

 

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3 a specification of: --

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

11. Clearly the fact that the default notice does not comply with the requirements as underlined in Para 8 above. The provision of the agreement alleged to have been breached is clause 8 relating to repayments and clearly the agreement produced does not have a clause 8 therefore there is no way clause 8 could have been breached

 

12. This is not a de minimus issue and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (Exhibit PF2) in the Court of Appeal, in this judgment Kennedy LJ states inter alia

 

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

13. Therefore, it would be the respondents position that the applicant / claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective

 

14. In addition, the document, which has been supplied, fails in its entirety to comply with the requirements of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) (Exhibit PF3). Regulation 2 of these regulations states that

 

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the

.

15. I would point out that the Claimant is seeking an order to enforce the agreement therefore the claimant is required to abide by these requirements and produce a copy of the agreement which is in an easily legible form as required by regulation 2 as set out above

 

16. In addition to the points raised I would ask for the court to allow me to amend my original defence as at the time I submitted the defence I did not have in my possession any of the documents which the claimant has now disclosed, despite my requests for further information and given that I am a litigant in person there are a number of other issues which have now

come to light in view of the claimants disclosure and therefore respectfully request that i be given the opportunity to defend this action.I make this request with the overriding objective in mind as set out with CPR 1

 

17. I therefore request that the court do dismiss the applicant's application for summary judgment.

 

 

I believe that the facts stated in this witness statement are true.

Signed ________________________

Dated ________________________

Ok first draft of what ive banged together, its no where near what i would push out for work but there again you are a litigant in person, so you will be allowed certain execptions Edited December 31, 2008 by pt2537

[pt2537]

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

 

this is a link to the woodchester and swain case

[pt2537]

section 87,88 cca 1974

 

Consumer Credit Act 1974 (c. 39) - Statute Law Database

[pompeyfaith]

Thank You PT that looks fantastic in light of the time i now have should i send this to the court special delivery and do i have to copy that to optima legal ?

 

Regards

 

Pompeyfaith