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[Von Greenbach]

Keep going PP

 

I don't post very often on your thread as I'm not sure what to advise but I do follow your thread

[AA99]

Hmm, Interesting

 

so the law according to our optimistic is that, you can sign a contract, then retun the contract to the lender at which point they can then send out a different contract to that which you originally agreed and you are then bound by the contract which you have not seen before

 

YEEEEEEEEEEEEEEEEEEEEEEEEEAH Right

 

 

Exactly, it seems! A lot of us have received Letters in response to CCA requests, with the same 'answer' for not providing original agreements. Regulation 3 of the Consumer Credit Regulations 1983 complies apparently:confused:There's an awful lot of us very confused now:confused:

[WelshMam2009]

Just wanted to send my best wishes Pompeyfaith...have read from start to finish!! Just CCA'd MBNA myself so waiting to see what creative works return!!

 

Having given evidence in civil court myself, on many ocassions (not debt related), I would reassure you by saying that, in my experience, the Judge does normally favour the small guy over the big corporate conglomerates. The usual exceptions to this rule are, of course, unless the law/argument is so compelling that he cannot find otherwise.....OR, you could wind him up a treat (as a certain couple recently) and do a great disservice to us all!!

 

Just be polite and humble and do exactly as directed.

 

Good luck....you have a lot of support on here and regardless of the outcome...you will survive!!

[angel_1]

hiya PF fingers crossed still for you

 

and sent the friend acceptance back to you

 

keep positive

 

laters angel x:cool:

[pompeyfaith]

Welshmam ,Angel,

 

Thank You both for your kind words it does give me the stamina to carry this though to the end.

 

Regards

 

Pompeyfaith

[pinknico]

With you all the way, all the luck in the world to you.Pink

[pompeyfaith]

LOL IM LOVIN IT LOVIN IT optima/mbna have just shot them self's in the foot.

 

Reading there witness statement they say the copy of the agreement submitted to court is not the executed agreement it was in there last statement they say the card carrier is the executed agreement lol since when has a card carrier been an xecuted agreement it carries no signatures. they then go on to say the 3 page T&C's are attached to the card carrier lol

 

What a load of bull

 

There are so many contradictions in there witness statement im having difficalty getting my head around it and laying out my statement.

 

Regards

 

Pompeyfaith

[blind-as-a-bat]

I had the same problem in my case, the claimant issued a statement of truth that was anything but the truth:rolleyes:

 

But the judge seemed oblivious too that, because he was, he had never seen the statement of truth, as they filed it late, so my siuation was or may be differant, but just make sure s/he has read it before going in for the kill

 

It was not untill i produced a DN that did not match that in the statement of truth he took notice, but still ignored all the other issues as far as i could see:rolleyes:

 

Judges all seem to act very diffeently, so be carefull you use the info wisely and at the correct time;)

[pompeyfaith]

Thank you for the advice Bat

[Docman]

In referring to the 'card carrier' agreement, I'd say they are going to rely on the Rankine case. You might like to check out the threads referring to the case.

[pt2537]

right, i have a card carrier in my possession and let me assure you, it is as bald as a coot when it comes to having any of the statutory information on it

 

so,if your agreement is from circa 1999 then you can rebutt that argument and i know someone who may be able to help you with the documents

[pompeyfaith]

they are indeed docman but if that is not signed by both parties and all they have offered as evidance to this is 2007 T&C which are not the historical terms how can this stand up in court they have also clearly changed there mind by saying in their statement that the agreement produced in their statement 4 judgment is now not an agreement but an application

Edited February 18, 2009 by pompeyfaith

[pompeyfaith]

thank you Paul this statement is so contradictary i spent best part of last nite trying to get my head around it

[atwozee]

They are also working on the basis that the card itself (bearing your signature) forms part of the document – how many people sign the card whilst it’s still attached to the card carrier?

When you remove the card from the carrier it no longer forms part of that document so you are just signing the card – that’s if you ever sign the card of course – I was forever forgetting to sign mine – especially when the pin thing came in.

[lexis200]

I've never even seen one that has come with the card facing that way, should you actually have wanted to sign it in situ - they always put them pretty side out:D

[pompeyfaith]

Hiya Guys n Dolls,

 

Ok Ive done my Witness Statement for Trial on the 3rd Marchm So i need to get this in now asap.

 

Could someone be so kind and cast on eye over it just to make sure it all looks ok and if i have included everything.

 

Should i send the consumer credit act 1974 again or just the pages of it i refer to in my statement ?

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/Witness%20Statement%20For%20Trial/WitnessStatementLFCpage1.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/Witness%20Statement%20For%20Trial/WitnessStatementLFCpage2.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/Witness%20Statement%20For%20Trial/WitnessStatementLFCpage3.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/Witness%20Statement%20For%20Trial/WitnessStatementLFCpage4.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/Witness%20Statement%20For%20Trial/WitnessStatementLFCpage5.jpg

 

For ease of assess its in response to theres below

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/WitnessstatementPage1.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/WitnessstatementPage2.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/WitnessstatementPage3.jpg

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/WitnessstatementPage4.jpg

 

Thank You

 

Regards

 

Pompeyfaith

[pompeyfaith]

Yes Lexis well ive finally got my statement done just waiting for someone to check it for me so i can deliver it by hand tomorrow.

 

I just hope the judge goes for it, as it pretty strong laying into there failures etc

 

Regards

 

Pompeyfaith

[lexis200]

Glad you're sorted with your statement pompeyfaith - I won't be one of the people checking it though as I have no idea what I'd be looking for:)

 

I do wish you luck though!

[pompeyfaith]

thank you lexis just your replies bumps it up

[underdog13]

Best of luck, pf:)

[atwozee]

The card carrier is merely a copy of the executed agreement (if at all) and I can’t believe they are trying to say it’s the executed agreement – as you say if it is then it hasn’t been signed by you has it – so by their logic they are left with a signed application – which could never be an agreement because an application is by nature pre-contractual.

Just a small point - does your DN state ‘Clause’ or ‘Paragraph’ – I know mine says paragraph.

If yours says paragraph then they are conveniently changing that term to clause and implying some legal term (ie clause in a contract) – it’s a pretty fundamental difference - it seems to me that they are also confused as to what the DN says.

Hope someone with more knowledge gives your witness statement the all clear.

Wishing you all the best with this.

[WelshMam2009]

Hi PF,

 

Ok, I'm not legally trained but have provided loads of defence statements via work. So, will try giving you a few (hopefully) general helpful comments which should also serve to 'bump' the post.

 

In the opening paragraph you use the word 'opposition' which should be removed. You are 'responding' to the claim.

 

Also, you begin by referring to yourself as ' I ' and then later in the third person as 'the defendant.' As it's your statement you should continue referring to yourself as I.

 

Is there any chance you can upload the file PF rather than the scanned pages.?

 

You could probably do that quickly, page by page, on here by copying and pasting and using the quote and /quote in the [ ] brackets.

 

Good luck!

 

WM

[pompeyfaith]

thank you both 4 pointing these errors out to me ill get them changed WM what do u mean by file ? Post the statement here page by page instead of links

[pompeyfaith]

oh i see sorry a bit slow this morning u mean put the word doc on here ill do it now thank u

[pompeyfaith]

On behalf of: Defendant

Witness:

Number: 1

Exhibits:

Date: 16th February 2009

IN THE PORTSMOUTH COUNTY COURT Claim No:

 

 

BETWEEN MBNA EUROPE BANK LTD

Claimant

And

 

Defendant

 

WITNESS STATEMENT OF

 

 

 

I, will state as follows:

 

1. INTRODUCTION

 

1.1 I am an Unpaid Carer and defendant in these proceedings .I make this witness

Statement in opposition to the claimant's statement filed for the trial on the 3rd

March 2009.

 

1.2 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. .

 

1.3 In the claimants witness statement submitted to the court the claimants state that

due to them not receiving the order until 30th January 2009 they were late in

complying with the order I would like to state as the Honourable Judge Wilson

set out the order to be complied with to Optima Legal’s rep on the 15th January

2009 there would be no excuse for them to be late as the rep knew what the

order was and it does not take 2 weeks to relay the information to Optima

Legal’s Office

 

1.4 They also go on to say that it did not disadvantaged or cause any hardship to the

defendant I would like to make it clear this is not the case as the defendant

had a stroke in 1990 and suffers with various symptoms of this including high

blood pressure and is finding this abuse of process very distressing

 

 

.

 

 

 

 

2. THE CLAIMANTS EVIDENCE

 

2.1 The claimant states in there evidence that they received my letter on the 18th July

2008 and that they did not reply until the 30th December 2008.

They go on to say that they sent the defendant a letter stating that they will be

taking the defendant’s instructions regarding the information requested on the

30th July 2008

 

 

2.2 The claimant states in there witness statement that there was a delay in obtaining

the information requested by the defendant and that they were unable to supply

this information until the 30th December 2008.

 

2.3 The claimant states that paragraph 8 that was not contained on the agreement

which they now admit is not the executed agreement but instead an application

form they go on to say that the agreement is attached to a card carrier.

 

 

3. THE DEFENDANTS RESPONSE TO THE CLAIMANTS EVIDENCE

 

3.1 The Defendant states that the letter sent to Optima Legal on the 16th July 2008

was a request under CPR PART 18 and Optima Legal are fully aware of CPR

RULES being solicitors and know that it does not take until the 30th December

2008 to send the requested information even if they had to forward the request to

MBNA Europe Bank Ltd. They go on to say that they informed by letter on the

30th July that they are awaiting there clients instructions I was unable to respond

to this Letter as the Letter was headed without prejudice this was a tactic on

there part to deny the defendant of his rights namely to submit a fully

particularised defence. The defendant wishes to state that this defence has still

not been submitted to the court because of this.

 

Attached to this statement is a copy of the CPR PART 18 request marked exhibit

“LFC 1”.

 

 

3.2 The defendant will state that he has been disadvantaged by not receiving the

bundle of documents until the 30th December 2008 because it was only 2 weeks before the Summary Judgment date of the 15th January 2009 and it left not enough time to go though the bundle and compile my defence.

. With the greatest of respect the solicitors Optima Legal Services Ltd seem to

think that CPR RULES do not apply to them.

 

 

 

3.3 The Defendant will state that the terms and conditions submitted to the court by the claimant are not the original and or historical terms and conditions as they are the latest set of terms and conditions which refer to £12 charges as stated in paragraph 3.

 

 

 

 

 

 

 

3.4 The claimant states that the signed copy of the agreement the defendant refers to is not the executed copy of the agreement but merely an application for a credit card and that the agreement which is the terms and conditions attached to the card carrier is the agreement. The defendant will state that the terms and conditions that they refer to and which they submitted as evidence to the court are not signed by the defendant or mbna Europe bank ltd so cannot be an agreement.

 

Attached to this statement is a copy of the alleged agreement that the claimant states is not an executed copy of the agreement marked exhibit “LFC 2”.

 

 

3.5 The Defendant wishes to draw the judge’s attention to paragraph 3.5 in the claimants witness statement in which they say the Signed copy of the agreement the defendant refers to is not the executed copy of the agreement so if that is the case and the Terms and conditions submitted to the court which are not signed at all in fact there is not even a signatory box there is no case to answer.

 

3.6 The defendant wishes to also draw the judge’s attention to paragraph 3.8 in the claimants witness statement in which I see a contradiction they state that MBNA EUROPE BANK LTD are unable to provide a clearer copy of the agreement but the alleged agreement they refer to as exhibit “NK3” is in fact the application form they refer to in paragraph 3.5.

 

 

3.7 The Consumer Credit Act 1974 s61 is explicit that a regulated agreement is not executed unless the following is carried out

 

61 Signing of agreement

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

(b) the document embodies all the terms of the agreement, other than

implied terms, and

© the document is, when presented or sent to the debtor or hirer for

signature, in such a state that all its terms are readily legible.

 

And further more I wish to bring to the judge’s attention the judgment of Wilson v

First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29

of LORD NICHOLLS OF BIRKENHEAD judgement.

 

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 and63, section 127(4) precludes the court from making an enforcement order.

 

 

 

3.8 If the defendant changes there mind and decides that the application form as

referred to in paragraph 3.4 is the agreement then my previous witness statement

still stands in that the default notice is materially defective, the notice states that I

have breached paragraph 8 of my agreement, however if we look at the

agreement there is no paragraph 8.

 

 

 

3.9 The consumer credit act 1974 s87 & 88 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.

 

 

 

 

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

 

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.

1. 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

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.

 

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

3.11 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'.

 

 

3.12 Therefore, it would be the respondent’s 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. Attached to this statement is the alleged Default Notice that the claimant refers to marked exhibit “LFC 3”.

 

 

 

4.1 Accordingly in light of the facts above the defendant seeks that the case be

Struck out with costs, If the judge is unable to strike out the case the defendant asks that the judge discontinues with the claim until such time as MBNA Europe Bank Ltd are able to provide the true executed copy of the alleged agreement.

 

 

Statement of Truth

 

I believe the facts stated within this Witness Statement to be true, and submit it with Exhibits LFC1 to LFC 3 comprising of 11 pages.

 

 

 

 

 

Signed………………………………….

 

 

 

 

Dated…………………………………..

There you hope does not look quiet the same as in word doc but i think it will do Edited February 21, 2009 by pompeyfaith
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