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[pt2537]

Hiya all

 

Sent my S.A.R off last night but i dont know what i should do now as i got an N1 in the post today i got 14 days to respond what do i do now

 

Regards

 

Pompeyfaith

 

 

Hi there

 

Right, before you go filing the acknowledgement of service, can i ask what the claim is for? credit card, loan etc .what are the particulars of claim? have they served upon you a copy of the credit agreement ?

 

sorry for the questions but we need to establish grounds for defending the claim first

[pt2537]

Hi there

 

yes these DCAs dont like to use the normal county court and tend to favour Northampton so they dont have to supply the agreement etc

 

that said, it doesn't necessarily mean that they dont have it

 

you need to send the part 18 request to Optima if they are the people representing MBNA

 

How old is the credit card? is it a recent one or is it a few years old?

 

Regards

 

Paul

[pt2537]

yes you should have received a LBA giving you atleast 14 days notice of intended litigation

[pt2537]

 

The profession is chuckling at a recent £60K order for costs against 2 claimants known on this site, who used versions of the docs and arguments regularly referred to herein. Some will know the case to which I refer.

 

Yep i certainly do and have the judgment to boot,

 

they didn't use documents referred to in this site, in fact their legal arguments were downright absurd, the court clearly could not do what they were asking given the circumstances

 

but you may wish to reconsider the amount of costs as there are still two cases to be determined for costs

[pt2537]

now then,

 

unless my maths is way off target,

 

5 cases, three determind as being £20000 per case costs = 60K plus two to be determind,

 

at least that is what this order from the court says

 

[pt2537]

I have to say that in my time on the site, we have seen many people claim to be this and that, only on investigation to be proven not to be

 

you need to accept Aloysiush that people will be sceptical of you and your suggestions for obvious reasons as this is an internet forum its easy for anyone to register and then post away;)

 

you display an obvious understanding of law, and it is nice to have someone as clearly knowledgable as your self onboard but as so many people have been caught out in the past, you will need to understand why people will be wary

[pt2537]

the default sucks,

 

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

[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

[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?

[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

[pt2537]

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

hang on, not finished yet

[pt2537]

right, each exhibit, attach a cover sheet as follows

 

 

On behalf of: Defendant

Witness: [initials and surname]

Number: [1st]

Exhibits: PF1

Date:

IN THE XXXXXXXXX COUNTY COURT Claim No:

 

 

BETWEEN

[________]

Claimant

and

[________]

Defendant

 

 

 

 

EXHIBIT "PF1"

 

 

This is the exhibit marked "PF1" referred to in the [1st] witness statement of P Faith dated the day of

 

 

 

 

 

 

 

you will need to amend the bits which are marked with PF1,2,3 etc as i did not know your initials so i used your user name instead

[pt2537]

Good stuff, i have amended a few bits, and i would make sure that you have every thing that is referred to in the statement attached

 

 

you will find the regulations i refered to within in this link

 

http://www.consumeractiongroup.co.uk/forum/statutes-library/27535-consumer-credit-act-1974-a.html

 

you need to make sure the judge has EVERYTHING so that he can see from the authorities themselves and not your witness statement

[pt2537]

http://www.consumeractiongroup.co.uk/forum/statutes-library/27535-consumer-credit-act-1974-a.html#post1209721

 

 

Look at the first and third set of regs in this post

[pt2537]

these two pt

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1408&d=1193875518 NOPE YOU DONT NEED THIS ONE

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1411&d=1193876108 YES THATS ONE OF THEM

[pt2537]

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1409&d=1193876017

 

thats the other regs you need that are refered to within the witness statement

[pt2537]

erm, didnt i deal with the default notice in the witness statement and out line the defects in it? i really trust you have read and understood the document i posted as it is your witness statement

 

and when people ask questions that have already been dealt with, it worries me as it looks as if you havent read what has been posted

[pt2537]

your argument still falls on the fact that the default fails to be effective thus they are stuffed

 

They really are talkin ball hooks

[pt2537]

I dont think so PT said he maybe able to attend with me but ive heard no more so i guess he is up to his eyes at the moment.

 

But good advice Caro Thank You

what time is your hearing?

[pt2537]

ok,I will see what i can do, i cannot promise anything but i will see what i can do

 

since you are on fast track and we are not on record, the judge may refuse me a right of audience as i am not yet qualified fully so i can only draw a right of audience from the company whom i work for

 

I will see what my schedule is, maybe if i cant get to the hearing then we may be able to chat and i could guide you as to the key points on your case,so that you are prepared etc

 

the main thing is to read and understand your statement, understand what it means and be prepared for any counter argument they may have

[pt2537]

PT if you check back ill be on in the morning and ill log in on my mobile one again PT thanks for all your help.

 

No Worries, will be oinline in the morning from around 9 am, drop me a pm to remind me as my memory is rubbish at the mo

[pt2537]

pompey,

 

i think you are missing one important matter

 

The default by virtue of the Ref to Clause 8 DOES NOT comply with the requirements of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

I quote from the regs

 

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.

Also i quote from the leading case of Woodchester lease management vs Swain

 

 

In my judgment, Mr Hodgkinson is right for the reasons which he has given. 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'.

 

That is the judgment of Kennedy LJ

 

I think that really says it all, balls up the default and get nothing

[pt2537]

Thank You PT I have both those quotes in triplicate i will highlight them

 

Regards

 

Pompeyfaith

right this is the case that this statement comes from, you will need it at court as the judge will want to know where you get this authority from