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[pompeyfaith]

Whole amount is being claimed VG thanks for clearing that up

 

PF

[angel_1]

HIYA Pf...

 

glad you are still hanging in and posting,,,,

 

did you ever think to look at the pompey site and see if you could contact anyone ref the magazine you got your application from, ?

 

am still thinking of this,,,it would be ace if you could actually get a copy of that mag to show What the Agreement ie application looked like Sir!

 

dont you know anyone in the management team perhaps, they could have alook in their archives,,,,only my thoughts, to help you

 

keep smiling laters all angel x

[the_shadow]

HIYA Pf...

 

glad you are still hanging in and posting,,,,

 

did you ever think to look at the pompey site and see if you could contact anyone ref the magazine you got your application from, ?

 

am still thinking of this,,,it would be ace if you could actually get a copy of that mag to show What the Agreement ie application looked like Sir!

 

dont you know anyone in the management team perhaps, they could have alook in their archives,,,,only my thoughts, to help you

 

keep smiling laters all angel x

 

Being a football fan (even if it is spurs) I know that you can get copies of most of the programmes, usually from the runners of fanzines which set up stalls around the ground. I must admit I've never seen them around fratton park when I've traveled down but I suspect they'll be there. You just need a rough timescale of when you took it out and find a big match thats near that date I suspect.

 

PmW

[StayingCalm]

Hi pf

 

Re Termination.

This is what x20 had to say on my thread with my battle with Restons

 

 

Re: StayingCalm vs Abbey with no CCA -----by x20 -----5-11-08----- Link231

 

SC,

I wouldn't bother responding to the latest email.

 

I would take all your papers to the court hearing.

 

If the case was decided in your favour that would be the end of it and the claimant could not bring a second set of proceedings on the 'res judicata' rule. If the other side discontinued the proceedings and then sought to begin second proceedings they would need the court's permission under CPR 38.7.

 

The Judge's agreement is not a pre-requisite for the other side to deliver a second DN. It is entirely a matter for them and the court will not give or refuse to give permission to serve a second DN. What I would say is that if the other side served a second DN and then sought to rely on it in the proceedings they would need to amend their claim so as to make reference to it. However, and this is what is causing the other side to prevaricate in serving a second DN, because, if a second DN was relied upon, the date of service of it would post-date the date on which they terminated the agreement and the date upon which they began the proceedings. In short the essential ingredients of a cause of action (ie service of a valid default notice followed by a failure to comply with it on a day prior to the beginning of proceedings) would be lacking. You have to get your horse before your cart.

 

Whether a DN is defective is a question of fact. The termination of an agreement by the creditor occurs where the creditor does something which would be consistent with his termination of it. Serving a notice of termination is one example (An 'express' example). Demanding any of those things which might only be demanded if an effective DN had been served followed by non-compliance (whether or not the DN was truly effective in law) would be an 'implied' example as would commencing proceedings for any of those things.

 

x20

 

 

Re: StayingCalm vs Abbey with no CCA -----by sc

 

Thanks x20

 

Would a 'Formal Demand' for the outstanding balance on an account also be an 'express' example of termination? (not applicable to this thead)

 

 

By 'implied' I assume this is because it is not actually mentioned in the CCA 1974. If this is the case, and the Judge can not see it in black and white, will he/she maybe not agree that the agreement has been terminated?

 

 

If by chance the other side does not turn up, am I able to refer to the recent correspondence between Restons and myself. Most, but not all, Restons letters are written 'Without Prejudice', am I allowed to mention these, or am I not allowed to refer to them at all.

 

 

Sorry for so many questions

 

sc

 

 

Re: StayingCalm vs Abbey with no CCA -----by x20

 

SC

A Formal Demand may be an implied example. Whether a termination may be implied or an express termination has nothing to do with CCA 1974. The test is whether the fact of termination is clear on the face of the document with 'Notice of Termination' or 'We hereby Terminate' or some such similar series of words clearly demonstrating termination. An implied termination would occur where there was no previous express termination but there is evidence of an act or document (or both or multiple acts and documents) from which the fact of termination may be inferred.

 

The question whether an agreement has been terminated is a question of fact to be decided by the Judge. Either it has been terminated or it hasn't. Demanding full payment on a credit card where the debtor may repay just a minimal sum monthly would be consistent with termination. Demanding the return of goods let under a HP agreement would be consistent with termination. Suing for either of these would be consistent with termination.

 

If the Judge decided a creditor had not terminated then the agreement would be a current agreement. Taking proceedings to enforce an agreement is inconsistent with the agreement being 'current'. I find it hard to conceive of a situation where a creditor might sue his debtor whilst within a contractual relationship with him. So it seems to me that a finding the agreement had not been terminated would result in the claim being rejected.

 

If the other side failed to turn up I'd show the DJ the dodgy DN and invite the DJ to conclude the Claimant's absence at court plus poor prospects demonstrated by the dodgy DN constituted sufficient cause to strike the claim out. You will not be allowed to refer to 'without prejudice' correspondence.

 

Good luck today. Let us know how you got on.

 

x20

 

 

Re: StayingCalm vs Abbey with no CCA by -----pt2537

 

A creditor may sue while an agreement is still live, the provision for this is where the agreement is improperly executed as the lender needs an order of the court to allow them to enforce the agreement. There are other situations where action can be taken under a live agreement tooo

 

Welcome to the bizarre and loony world of the Consumer Credit Act 1974

 

pt2537

 

 

 

Hope this helps

 

Regards

sc

[caro]

Could you provide a link to your thread please StayingCalm. People might find it useful to read the full thread to put it into context, and also see how your claim progressed.

[citizenB]

Could you provide a link to your thread please StayingCalm. People might find it useful to read the full thread to put it into context, and also see how your claim progressed.

 

 

There you go Caro, link to SC's success story

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/145452-stayingcalm-abbey-no-cca.html

[pompeyfaith]

Thank you Caro and Citizen

 

And Thanks to SC the above will be a great help

 

PF

[pompeyfaith]

Guys i should of got my witness statement into court by today but due to me being in hospital last week this has taken over my mind so i forgot do you think it will be ok for me to get it in now enclosing a letter explaining why it was late and enclose my hospital discharge notes too ?

 

I had a heart attack which resulted in an angioplasty and a stent fitted to a coronary vesel

 

Regards

 

PF

 

I can enclose this with WS

 

Edited March 31, 2009 by pompeyfaith

[fairbyblue]

Guys i should of got my witness statement into court by today but due to me being in hospital last week this has taken over my mind so i forgot do you think it will be ok for me to get it in now enclosing a letter explaining why it was late and enclose my hospital discharge notes too ?

 

I had a heart attack which resulted in an angioplasty and a stent fitted to a coronary vesel

 

Regards

 

PF

 

I think thats a reasonable excuse !!! Hope you feel better:)

[pompeyfaith]

Thanks Fairbyblue ill do that

 

Yes i do feel better so now onwards and upwards

 

The wife is feeding me a diet of fresh fish and oily fish bless her.

 

Regards

 

PF

Edited March 31, 2009 by pompeyfaith

[guzzleguts]

I dont see how they can argue with that.

 

Glad your on the mend PF!

 

GG

[Night Owl]

Oh my God PF please take care of yourself. You are under such an incredable amount of strain with all this.

Get well soon.

 

Night Owl

[I've got no money]

Can I just clarify a couple of points - Has this case been allocated - if so to which track?

 

The witness statement that you're filing is that in response to their application for summary judgment. Have you had their witness statement yet? If so what does it say?

 

I wouldn't be too worried about filing a witness statement a couple of days late - dont forget that you need to serve it on the other side

 

I've just been looking through your thread - I cannot believe that a Solicitor told you that you didn't need representation - if he genuinely thought that you had a rock solid case he should have offered either public funding or a no win no fee arrangement. Consumer Credit cases are by their very nature complex and in any event it is always best to have expert representation. The least they could have done was draft the defence for you...

Edited March 31, 2009 by I've got no money

[pompeyfaith]

I,ve Got No Money

 

This is my third WS i have been to court but the judge adjourned it due to the abuse of process namely to allow me to file my defence as the claimant was hellbent on railroading this claim though and denying me my right to file a defence as they said i had no defence and did not supply the docs i requested until end of december some two weeks before the SJ which they applied for in november 4 weeks before supplying my requested docs.

 

The SJ was turned down and it then went to trail fast track but i now see why they where hellbent on railroading claim though as the default is fraudulent they have not produced the original DN to court but an amended one as the original did not allow time for service and it related to clause 3 where as the amened one relates to clause 8.

 

If you go back to about page 20 that will give you a good indication as to the state of play

 

The judge was also not pleased at all that the claimant was not there last time and has put in the latest order that i can request that the claimant be present if i so wish.

 

Regards

 

PF

Edited March 31, 2009 by pompeyfaith

[e28bigalbexley]

Hi Pompy sorry to hear you have had a stay in hospital.I hope you are making a good recovery and are feeling better.

Tell the wife easy on the oily fish you never know what might happen:D

 

 

 

http://media.funlol.com/content/img/penguin-slap.gif

[I've got no money]

So you've done disclosure and this then is witness statements.

 

What directions come next - are there any directions for agreed statements of facts and issues - what about trial bundles - you'll need to agree trial a trial bundle index with them - are there any directions for filing skeletons in advance of the trial. Could you post a copy of the Directions Order.

[pompeyfaith]

that is all done i have to follow this court order:

 

 

Regards

 

PF

[I've got no money]

So you have got to tell the other side what issues are outstanding and which witneses you want.

 

In terms of the case summary and bundles - they should be agreed - if I were you I would write to them now and ask them to send you a draft trial bundle index to include an authoritries bundle index together with a draft case summary by the 21st of April. That way you can look at what they say and try to agree it. You can then add to what they suggest.

 

If you cannot agree what they say you can produce your own case summary and your own trial bundle BUT wherever possible it should be agreed and produced by the claimant. The trial bundle should also include both your skeleton and also the other side's skeleton.

 

What I would suggest on the skeleton front is that you contact the other side and agree that you and they will swop skeletons by 4pm on the 30th of April. What you don't want is for them to have your skeleton before they give you theirs.

 

You need to be conscious of the fact that the case summary and the skeletons are crucial so you need to get them right.

 

The other thing that springs to mind is that the Order does not mention disclosure...which is somewhat unusual...unless of course it had already taken place

 

As they are clearly going to use counsel I'd think about getting legal representation

[pompeyfaith]

bundles have already been exchanged as it went to trail on the 3rd march but was adjourned as per the order above and yes disclosure has already taken place last year

 

As for counsel yup he was there last time in court and was a Piers Morgan to put it mildly he well and truly p----- off the judge she was not happy at all with him

 

The judge im sure already has a pretty good idea of there tactics i.e not following court procedures, abuse of process and once she sees the original DN and the altered one that should kill it off.

Edited March 31, 2009 by pompeyfaith

[I've got no money]

bundles have already been exchanged as it went to trail on the 3rd march but was adjourned as per the order above

 

Were the bundles prepared for the trial or were they prepared for the summary judgment application. In any event there is quite a bit of fresh material to go in

 

Are the bundles OK - the authorities bundle needs to included any statute, case or regulation that either party seeks to rely on. Likewise the trial bundles have got to include the case summary, your up to date defence and witness statement and the skeletons.

[pompeyfaith]

they where trial bundles the claimant has until 4pm 5th may 2009 to update the bundles so i guess i will get an updated copy then although my last bundle arrived late but thats nothing new for optima legal

[I've got no money]

they where trial bundles the claimant has until 4pm 5th may 2009 to update the bundles so i guess i will get an updated copy then although my last bundle arrived late but thats nothing new for optima legal

 

Yes - but you need to approve what goes in it...especially the case summary...the claimant doesn't dictate what goes in it - you need to agree.

 

On the basis that there is quite a bit of new material they may well just prepare a totally new bundle

[pompeyfaith]

Ok will be interesting how they explain away the original DN and the fraudulent copy they have already put in the last bundle which the judge has seen.

[alanalana]

Just popping in pompey to offer support. Don't let the B******s grind you down. Keep up the fight;)

 

aa

[pompeyfaith]

thanks Alanalana despite a heart attack and hospital stay last week which was partly due to stress i have no intention of throwing in the towel