Help

[pt2537]

ask them to confirm what clause you are supposed to have broken and ask them to show you that on the agreement

 

I bet they cant

[pt2537]

BAB, surfaceagentx20 and pt2537 have both offered their opinion on the Rankine Judgement and there were several errors I believe and there are counter arguments on the forums. Sorry at the moment, I dont have the links to hand. However, in this thread I have linked you to 2 posts that might just put your mind at rest.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1927305.html

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1927710.html

when will people accept that Rankine does NOTHING to the form and content requirements of the credit agreement

 

Read the judgment, it is clear that Rankine sought to bring a claim under s78(1) which is gross insanity as the court does not , as correctly held by HHJ Brown QC, have the power to make a declaration for a breach of 78.

 

this is clearly obvious as to declare a lender in breach of s78 by failing to supply an agreement as being denied the ability to remedy the breach under a s142 Declaration would be unjust, s78 clearly allows for a breach to be remedied in the future

 

the real issue should be, and rankine did not touch this point, that the agreement which you signed MUST have complied with the act in its form and content requirements (See 60 & 61(1)(a) CCA 1974)

 

thus if the agreement you signed did not contain the required info then you are able to seek a declaration under 142(1)

[pt2537]

Pompey,

 

From a purely personal point of view, i had an extremely bad day yesterday and am now going to be spending the next day or so in Birmingham due to my work commitments. i just havent had the time to go through the thread and offer any formal response to your question

 

I think that you should also try and remember that, just because a site team member views your thread, it doesnt automatically mean they A) are knowledgable in your cases area of law and; B) are able to offer any kind of help

 

I will endeavour to reply when i get home from Birmingham but i must stress that if i dont get back til late tonight then its unlikely that i will reply today

 

Please bear with us

[pt2537]

Thank you all that have posted the moral support really is appreciated.

 

Thank You Caro yes I do understand all moderated support is voluntary and I thank you immensely for that.

 

Im not sure if you are aware but i had a stroke a while ago and had to have major brain surgery and as a result of this im left with poor memory high blood pressure plus some physical problems like a drop foot club hand etc.

 

But on the bright side i am usually a happy person who is willing to help anyone particularly in the PPI forum but i do have a problem with all this legal stuff and get quiet frustrated at times specially when the so called legal powers abuse the CPR rules.

 

Anyway enough of that i will now proceed and post up the latest Witness statement from Optima Legal so please bear with me as its a few pages.

 

Regards

 

Pompeyfaith

Well

 

Pompey, lets get the documents posted and we can see what we can do to help you out eh?

[pt2537]

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

[pt2537]

Well they seem not to want to play with the summary judgment now

 

they want to go to trial , silly beggars

[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

[pt2537]

Guidance Notes on Witness Statements

 

The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public and, at any other hearing, by their evidence in writing.

CPR r.32 and CPR PD 32 set out the formal requirements for written evidence, including witness statements. These are summarised below.

Format of the witness statement

The top right hand corner of the first page should contain:

· The party on whose behalf the statement is made;

· The initials and surname of the witness;

· The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

· The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

· The date the statement was made.

The witness statement should be headed with the title of the proceedings.

The witness statement should:

· Be produced on good quality A4 paper with a 3.5cm margin;

· Be fully legible and should normally be typed on one side of the paper only;

· Be bound securely in a manner which would not hamper filing;

· Have consecutively numbered pages;

· Be divided into numbered paragraphs;

· Have all numbers, including dates, expressed in figures; and

· Give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement, for example [at page14 “ABC1”]

It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with. Each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.

Content of the witness statement

· The witness statement must, if practicable, be in the witness’s own words and should be expressed in the first person;

· The first paragraph generally sets out the “who, what and why” of the statement maker:

o Who the witness is – name, residential address (or business address if he is making the statement in a business or professional capacity, together with the position held and the name of his firm or employer)

o What the witness’s connection with the proceedings is

o Why the witness is making the statement;

· Witness statements should deal with facts known to the witness. To demonstrate that this is the case, words such as: “Save where I indicate to the contrary, the matters set out in this witness statement are known to me personally.” Where a fact is not within the direct knowledge of the witness, it can be included but should be preceded by, for example “I am informed by [ ] and believe that ...”. It is important to state the source of any matters or information or belief;

· Witness statements in support of or in opposition to an interim application should contain only facts relevant to that application;

· Witness statements of lay witnesses should not contain legal argument. If it is necessary to refer to the legal position, a phrase such as “I am informed by my solicitor and believe that ...” maybe used;

· Witness statements must contain a statement that the witness believes the facts in it are true;

· Witness statements should be signed and dated.

Please see outline precedent witness statement below.

Exhibits

Documents referred to in a witness statement should be produced to and verified by the witness and remain separate from the witness statement.

Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top.

Each exhibit should have a front page attached identifying its exhibit number and details of the statement to which it is exhibited.

The top right hand corner of the exhibit sheet should contain:

· The party on whose behalf the statement is made;

· The initials and surname of the witness;

· The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

· The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

· The date the statement was made.

The exhibit sheet should be headed with the title of the proceedings. A centre-heading should state the exhibit number.

 

this is the guidance notes from the precedents i use in my day job

 

Hope it helps

[pt2537]

it is clear within section 61(1) (A) CCA that ALL the terms MUST BE LAID BEFORE YOU BEFORE THE AGREEMENT IS SIGNED

 

its not sufficient to send them after the agreement is concluded as that would mean you dont know what you are signing til youve signed it

[pt2537]

just want to add,

 

Good luck for tomorrow mate:)

[pt2537]

One thing i will have to get is the law books because the counsel was talking so much ---- at times and reffering to these books i had a job to follow him at times.

 

Ill have to check out the libary nearer the time.

 

PF

what law books do you need my friend, i have quite an extensive law library and im only down the road from you;)

[pt2537]

right, law books are very costly, and the type you are looking for, for example my blackstones was well over £200, plus the civil court practice Green Book was £348 each book, theres 3 volumes

 

With regards to representation, if you get legal representation then you will not have to worry about the books etc as a good lawyer willl have them,

 

if you are fast track or multi track then you may be able to get a firm to take you on a CFA or conditional fee agreement which is no win no fee in essence and they would recover the fees from the other side

 

with regards to MBNA barrister, bless him hes still a young pup,

[pt2537]

Oh dear, so they are attempting to mislead the COURT by creating a false document

 

That is contempt of court, naughty naughty

[pt2537]

ah thats different

 

two for the price of one

 

bet they try adding the costs to their schedule of costs too

 

watch out for that as they should only charge you for one statement

[pt2537]

Hi PF,

 

Damn thats dreadful news, im really sorry to hear about that,

 

Right,

 

To get the matter stayed? Do you need it stayed? or do you merely need the hearing vacated and re-instated at a later time?

 

If you want the claim stayed, you can write to the court and ask the letter to be put before the district judge for directions

[pt2537]

Hi PF, Im real sorry to hear of your loss.

 

please let me know when the hearing is re-scheduled for when you are told and i will , providing that im not on a case already, attend pompey courts with you on the day of your hearing,

 

Id really love to give them a bloody nose for ya:)

[pt2537]

im seating here with a tear down my face because the people here are truly amazing i would like thank the moderaters there kind words have been fantastic

mate , you are very welcome, as i said though the most notice possible would be great as our schedule is filling up rapidly so when you hear from the court for the hearing , drop me a PM and we will have to have a chat about the hearing etc to get things sorted

[pt2537]

i always thought that, if it looks like a duck, waddles like a duck and quacks like a duck it must be a duck,

 

so on that basis, if it says credit agreement , then it must be that

[pt2537]

yes, but if they try that nonsense

 

Politely draw the courts attention to the judgment of Lord Nicholls of Birkenheads judgment in wilson and first county trust

 

para 46-49 , which confirms that there can be no unjust enrichment where the lender gets the agreement wrong and its rendered unenforceable as a result

[pt2537]

I don't know - I just know that I've read it somewhere...

The 1974 Act allows for a second default to be issued, in certain circumstances, in fact you could over the course of an account have 100s of default notices issued if they are remedied

[pt2537]

I don't know if I agree with that - I'm just not sure that an absolute assignment is a termination. If it were the case then if the agreement were terminated the assignee would not be able to issue a DN at all, as the agreement had already been terminated by the actual assignment.

 

As I keep saying I honestly don't know if an assignment terminates an agreement - in principle I can't see why it necessarily should.

 

Can you point me to a bit of case law - cos it sounds like a really interesting issue

It cant be, otherwise Morgan Stanley, Goldfish , HFC Bank et al would have fallen into major difficulties when selling the credit card accounts to the purchasers, such as Barclays and HSBC. It is incorrect to suggest that assignment merely means that the account terminates, it can continue in operation even when sold to a debt purchaser

[pt2537]

Rankine does not apply here to Notices of Assignment

 

the leading case is still Harrison and Burke to that point even though i have had counsel try and argue that Manine investments and Eagle star is the lead case ( it is no as its landlord and tennant case law) if the amount stated in the notice differs from that on the deed it is bad, it is also worth noting that the bad assignment did not fall into equity either!!

[pt2537]

In my case the assignee doesn't hold a consumer credit licence

then they commit a criminal offence

[pt2537]

just a quickie but if they play silly beggars then it may give rise to an unfair relationship pursuant to s140a CCA 1974;)

[pt2537]

I don't believe they do as the account has been terminated and there is no "live" running credit agreement.

 

Naturally they will need some type of licence for debt collection activities. You can check the reister on the link below.

 

 

Public Register

no, Optima are solicitors therefore are covered by the block licence given to the Law Society