Phoenix/Cater Claimform - Joint LTSB OD Debt **WON - DISCONTINUED**

[madi's mum]

Hi Caro

 

Thanks for getting back to me, much appreciated I know you are all busy people. Anyway I have sent the defence as posted here - hopefully I haven't made any silly mistakes - the Claimants have now got 28 days to respond so I'll update when I've received that.

 

Cheers

 

Madi's Mum

[madi's mum]

OK - once again time has passed and I am now in the process of producing witness statements to serve which i have to have to the claimant and court by Thursday 20th August. I will post them up for review once I've gotten to grips with them - in the meantime I would very much appreciate it if someone would take a look at the defence I put in and give me some advice as to whether or not I should continue with the court hearing or make an arrangement to pay?

 

Thanks in advance

 

Madi's Mum

[pompeyfaith]

Bear in mind any arrangement to pay you make is not judgemental in that they will attempt to increase it at some point if that's the way you want to go

 

Its far better to let it be set by a judge remember a judge will not set a payment plan that you cannot keep to they are human unlike the DCA'S.

 

If this is the outcome you are after mediate with the other party in court then have the result set by a judge by way of a consent order its then cast in stone and cannot be increased without the judges authoity.

 

This way you would also avoid a ccj.

 

Regards

 

PF

[madi's mum]

Hi PF

 

thanks for that - a good point, do you mind if ask you whether you think I've put up a reasonable defence or not as I'm all for seeing this through to the end but equally don't wish to 'flog a dead horse'!

 

Cheers

Madi's Mum

[madi's mum]

Evening all

Can anyone out there tell me how long you're supposed to be given to remedy a Default Notice? I know I've read it on here about a million times but I'm going boss eyed putting together my witness statements and just thought someone might have the answer on the tip of their tongue!

thanks!

Madi's Mum

[AndyOrch]

Evening all

 

Can anyone out there tell me how long you're supposed to be given to remedy a Default Notice? 14 Days + 3 for service I know I've read it on here about a million times but I'm going boss eyed putting together my witness statements and just thought someone might have the answer on the tip of their tongue!

 

thanks!

Madi's Mum

 

Hi Madis Mum

 

Here are some sections on DN in a successful WS, may be of use:-

 

 

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a Letter Before Action on the XXXXXXXXX demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

13 In these circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

14 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

Regards

 

Andy

Edited August 17, 2009 by Andyorch

[madi's mum]

Hi Andy

 

Wow - much more than I was expecting! I'll have a good read through and see what I can do with it. Thanks so much for your help.

 

Kindest Regards

 

Madi's Mum

[andymanx]

subb

[madi's mum]

OK - seem to be burning the midnight oil alot this week! I have put together my draft witness statement and should appreciate some feedback if possible. It's quite long so I think it may need editing down. One other thing which I could do with an answer to, can the witness statement be on behalf of both me and my other half or do we have to submit seperate ones; or as it's me going to the court should I just write the one in the first person and get the other half to write a letter saying I am speaking on his behalf and that he agrees the contents of the statement?

 

Here goes:

 

normal front page, then:

 

 

1. I XXXXXXX of XXXXXXXXX am the defendant in this case and a litigant in person and I make this statement in support of my application for the Judgment to be Set Aside.
   
2. I make this Witness statement from information and facts within my own knowledge, except where I have indicated otherwise, and which I believe to be true. 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 “XXX”. The exhibit XXX contains copies of the documents to which I will refer to in this witness statement. Their related document number can be found at the bottom right hand of each page.
   
4. I received a Claim Form dated Xth July 2008. The Claimant was stated as Phoenix Recoveries (UK) Ltd S. Re: Phoenix Recoveries (UK) LIM. Re: Fredrickson Recoveries 25b Boulevard Royal L-2449 Luxembourg.
   
5. At no time before receipt of the claim form in this case was I made aware from the Claimant or the Claimant’s solicitors that solicitors had been instructed by the Claimant to commence proceedings.
   
6. On XXth July 2008 both my partner and I made separate requests for a copy of the default notice accordance with CPR 31.14 , which I refer to the exhibit marked “XXX-11”. The Claimant failed to comply with this request.
   
7. On XXth September 2008 a General Form of Judgment or Order was issued by XXXXXXXXXX County Court instructing Claimant to provide requested documents.
   
8. On XXth September 2008 the Claimants sent a letter to Court confirming disclosure of all information the Claimant possesses which I refer to the exhibit marked XXX-02. This included their Allocation Questionnaire in which they contradict the amount in dispute, citing the amount as £XX,XXX.XX not £XX,XXX.XX as stated on their original court claim form. They also sent a screen print from Lloyds TSB as they were unable to provide a true copy of the original Default Notice; a reproduction of the assignment letter allegedly sent to the Defendant on XXth November 2007 and a further reproduction letter of when Frederickson International Ltd were instructed to collect this debt allegedly sent to the defendant on the XXth November 2007, neither of these letters had any information specific to the Defendants on them. They also sent statements of account relating to the overdrawn account which clearly show unfair bank charges have been added.
   
9. On XXth October 2008 we made an application to the court for an order compelling the claimant to furnish information previously requested i.e. a true copy of the Default Notice, Document, contract or deed of Assignment, Notice of Assignment, with proof of service of the same compliant with s196 or the Law of Property Act 1925.
   
10. On XXth October 2008 a Second General Form of Judgment or Order was issued by XXXXXXXXXX County Court instructing Claimant to provide requested documents.
    
11. On the Xrd November 2008 the Claimant made an application for an order that the Order of Deputy District Judge XXXXXX dated XX October 2008 in this matter be set aside on the grounds that they are unable to comply with all of the requests detailed in the letter of the Defendant dated XXth July 08. With this application they included another reproduction copy of the Notice of Assignment, this time with details relating to an MBNA Credit Card Account purporting to be from Arrow Global LLC dated XX November 2007 along with a reproduction copy of a Default Notice also now containing information regarding an MBNA Credit Card Account and on Arrow Global LLC letterhead
    
12. On the XXth march 2009 a General Form of Judgment was issued by XXXXXXXXXX County Court ordering that; the order of XXnd October 2008 be set aside; the case be allocated to small claims track; the order of XXth Sept 08 be varied; the claimant to file and serve amended fully pleased Particulars of Claim; and the defendants to file and service an amended defence.
    
13. On XXth April 2009 the Claimant issued Amended Particulars of Claim with the claim total now being £XX,XXX.XX plus interest of £XXXX.XX plus costs; they attached a different reproduction letter allegedly from Lloyds TSB assigning the debt to Phoenix Recoveries (UK) Limited acting in the name and on behalf of its compartment Fredrickson Recoveries; plus copy of assignment from Fredrickson International Ltd dated XXth November 2007; plus breakdown of the claim amount for the claimant which appears to include some of the costs twice.
    
14. I deny that a default notice was received from the claimant and therefore the claimant is put to strict proof that one was issued and of the contents supposedly stated therein. A request for a copy of the default notice was made in accordance with CPR 31.14 on XXth July 2008, which I refer to the exhibit marked “XXX-11”. The Claimants to date have provided 3 different ‘true copies’ of this document which they admit in their Allocation Questionnaire dated Xrd November 2008 “The Claimant’s internal systems do not in the interest of efficiency allow for the retention of copies of individual letters as they are system generated letters. The same is true of the Default Notices. The system notes confirm that these were sent. The Claimants issues Notices by First Class Post. No proof of posting is available.”
    
15. The Claimant contends that a compliant default notice was delivered to me but relies on a screenshot from a “Transcops” system that shows the entry Default Notice Date: XX/0X/2006.
    
16. At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.
    
17. The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.
    
18. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.
    
19. The claim is for the early repayment (i.e. before the full term of the alleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a default notice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.
    
20. Inter alia, the regulations made by the Secretary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.
    
21. The reproduction copy of the default notice supplied by the Claimant in response to the order of the Court is dated Friday 16th November 2007 and says "To remedy this breach you must pay us the total arrears of £XX,XXX.XX before 24th November 2007. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 16th November would be deemed served on Tuesday 20th November and 14 clear days from then is Tuesday 4th December. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.
    
22. The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).
    
23. . In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer.” Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.
     
     
    The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.
    

PRINCIPLE ARGUMENTS

 

I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

 

I believe that that there are reasonable grounds to suppose that I will be able to successfully defend this action and I give below a brief summary of my defence and I would invite the court to conclude this also:

 

1.

It is denied that any Notice of Assignment was ever received and we put the Claimant to strict proof that said document in the prescribed format was delivered to us in accordance with s196(4) of the Law of Property Act 1925:

“(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1 by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

 

 

3.

The balance due on the account at the time of the alleged re-assignment was £XX,XXX.XX as per sheet 17 issued XX/0X/06 which shows the closing balance on the account. The Defendants dispute this amount as it includes penalties charges totalling £X,XXX.00, a full breakdown of which is attached appendix A, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd 1915, under The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable.

 

 

4.

It is denied that any Default Notice in the prescribed format was ever received and we put the Claimant to strict proof that said document in the prescribed format was delivered to us in accordance with s196(4) of the Law of Property Act 1925:

“(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1 by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

It is once again noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

 

We note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If Lloyds TSB sent a default notice that includes unlawful charges, this default notice is invalid under English law for the reason that it is inaccurate and so the Claimant may not seek to enforce this debt.

 

 

5.

Regarding that which is denied, the Claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. It is therefore averred that this claim is brought in relation to an overdraft which is credit as defined within the Consumer Credit Act 1974, the Defendant notes that the Claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

(3) Interest shall not be payable under this Order where the relevant

judgment—

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974 ;

 

 

 

 

21.1. I deny that I am liable as alleged in the Particulars of Claim, or at all.

 

21.4. I deny that a valid Notice of Assignment was received and therefore put the claimant to strict proof that one was issued in line with Section 196 the Law of Property Act 1925 which is required to give the Claimant a legitimate right of action in their own name since it appears this is an assigned debt.

 

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

Well that's about it, I know the numbering and appendix references need tidying up but all feedback on content greatfully received.

Cheers All

Madi's Mum

[madi's mum]

Bump!

Would appreciate it if someone could take a look and give some feedback.

Many thanks

[AndyOrch]

Hi Madis Mum

 

look s good but i would not advocate quoting case laws, not needed in a WS.

 

Regards

 

Andy

[madi's mum]

Cheers for that Andy - I'm in the process of editing it now so I'll bear that in mind.

 

Thanks for the prompt response - hope not to be up half the night with this again!

 

Madi's Mum

[AndyOrch]

Post up your final draft and the Claimants, if recieved and i will give it a final check

 

 

Regards

 

Andy

[madi's mum]

Will do, although nothing received from the Claimants - I expect it will arrive tomorrow.

[AndyOrch]

Will do' date=' although nothing received from the Claimants - I expect it will arrive tomorrow.[/quote']

 

Have you recieved a copy of their application it should be attached

Check the DJ order what date are you to file and serve by?

 

Regards

 

Andy

[madi's mum]

Just a point on the format of the WS - where I have included reference to documents sent or received more than once do I copy that document as many times as is mentioned and reference each item uniquely although it may be the same or do I just give one reference to each unique document and refer back to the same reference each time it is mentioned?

[AndyOrch]

Just a point on the format of the WS - where I have included reference to documents sent or received more than once do I copy that document as many times as is mentioned and reference each item uniquely although it may be the same or do I just give one reference to each unique document and refer back to the same reference each time it is mentioned?

yes;)

Andy

[madi's mum]

OK - here goes with the new and improved(?) witness statement!

 

1. I XXXXXXX of XXXXXXXXX am the defendant in this case and a litigant in person and I make this statement in support of my application for the Judgment to be Set Aside.
   
2. I make this Witness statement from information and facts within my own knowledge, except where I have indicated otherwise, and which I believe to be true. 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 “XX-1”. The exhibit XX-1 contains copies of the documents to which I will refer to in this witness statement. Their related document number can be found at the bottom right hand of each page.
   
4. I received a Claim Form dated Xth July 2008 (Document XX-2). The Claimant was stated as Phoenix Recoveries (UK) Ltd S. Re: Phoenix Recoveries (UK) LIM. Re: Fredrickson Recoveries 25b Boulevard Royal L-2449 Luxembourg.
   
5. At no time before receipt of the claim form in this case was I made aware from the Claimant or the Claimant’s solicitors that solicitors had been instructed by the Claimant to commence proceedings.
   
6. On XX July 2008 both my partner and I made separate requests for a copy of the default notice accordance with CPR 31.14 (document XX-3). The Claimant failed to comply with this request.
   
7. On XX September 2008 a General Form of Judgment or Order was issued by XXXXXXXXXX County Court instructing Claimant to provide requested documents.
   
8. On XX September 2008 the Claimants sent a letter to Court confirming disclosure of all information the Claimant possesses (document XX-4). This included their Allocation Questionnaire (document XX-5) in which they contradict the amount in dispute, citing the amount as £XX,XXX.XX not £XX,XXX.XX as stated on their original court claim form. They also sent a screen print from Lloyds TSB (document XX-6) as they were unable to provide a true copy of the original Default Notice; a reproduction of the assignment letter (document XX-7) allegedly sent to the Defendant on XX November 2007 and a further reproduction letter (document XX-8) of when Frederickson International Ltd were instructed to collect this debt allegedly sent to the defendant on the XX November 2007, neither of these letters had any information specific to the Defendants on them. They also sent statements of account (document XX-9) relating to the overdrawn account which clearly show unfair bank charges have been added.
   
9. On XX October 2008 we made an application to the court for an order compelling the claimant to furnish information previously requested i.e. a true copy of the Default Notice, Document, contract or deed of Assignment, Notice of Assignment, with proof of service of the same compliant with s196 or the Law of Property Act 1925.
   
10. On XX October 2008 a Second General Form of Judgment or Order was issued by XXXXXXXXXX County Court instructing Claimant to provide requested documents.
    
11. On the XX November 2008 the Claimant made an application for an order that the Order of Deputy District Judge XXXXXX dated XX October 2008 in this matter be set aside on the grounds that they are unable to comply with all of the requests detailed in the letter of the Defendant dated XX July 08. With this application they included another reproduction copy of the Notice of Assignment (document XX-100, this time with details relating to an MBNA Credit Card Account purporting to be from Arrow Global LLC dated XX November 2007 along with a reproduction copy of a Default Notice (document XX-11) also now containing information regarding an MBNA Credit Card Account and on Arrow Global LLC letterhead
    
12. On the XX march 2009 a General Form of Judgment was issued by XXXXXXXXXX County Court ordering that; the order of XX October 2008 be set aside; the case be allocated to small claims track; the order of XX Sept 08 be varied; the claimant to file and serve amended fully pleaded Particulars of Claim; and the defendants to file and service an amended defence.
    
13. On XX April 2009 the Claimant issued Amended Particulars of Claim (document XX-12) with the claim total now being £XX,XXX.XX plus interest of £XXXX.XX plus costs; they attached a different reproduction letter (document XX-13) allegedly from Lloyds TSB assigning the debt to Phoenix Recoveries (UK) Limited acting in the name and on behalf of its compartment Fredrickson Recoveries; plus copy of assignment (document XX-14) from Fredrickson International Ltd dated XX November 2007; plus breakdown of the claim amount for the claimant (document XX-15) which appears to include some of the costs twice.
    
14. I deny that a default notice was received from the claimant and therefore the claimant is put to strict proof that one was issued and of the contents supposedly stated therein. A request for a copy of the default notice was made in accordance with CPR 31.14 on XX July 2008 (document XX-3). The Claimants to date have provided 3 different ‘copies’ of this document which they admit in their Application Notice (document XX-16) dated XX November 2008 “The Claimant’s internal systems do not in the interest of efficiency allow for the retention of copies of individual letters as they are system generated letters. The same is true of the Default Notices. The system notes confirm that these were sent. The Claimants issues Notices by First Class Post. No proof of posting is available.”
    
15. The Claimant contends that a compliant default notice was delivered to me but relies on a screenshot from a “Transcops” system that shows the entry Default Notice Date: XX/0X/2006 (document XX-6).
    
16. At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice.
    
17. The Claimant has already given notice (document XX-16) that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.
    
18. Notwithstanding the matters pleaded above, the Claimant must serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.
    
19. The claim is for the early repayment (i.e. before the full term of the alleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a valid default notice.
    
20. As I understand it , the regulations made by the Secretary of State concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action may be started.
    
21. The reproduction copy of the default notice (document XX-14) supplied by the Claimant in response to the order of the Court is dated Friday 16th November 2007 and says "To remedy this breach you must pay us the total arrears of £XX,XXX.XX before 24th November 2007. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 16th November would be deemed served on Tuesday 20th November and 14 clear days from then is Tuesday 4th December. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.
    
22. The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.
    

PRINCIPLE ARGUMENTS

1. I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

2. The claimant has already admitted in their application notice (document XX-16) dated xxxxxxx that they are unable to produce a copy of the default notice.

3. I deny that I am liable as alleged in the Particulars of Claim, or at all.

4. I deny that a valid Notice of Assignment was received and therefore put the claimant to strict proof that one was issued in line with Section 196 the Law of Property Act 1925 which is required to give the Claimant a legitimate right of action in their own name since it appears this is an assigned debt.

 

STATEMENT OF TRUTH

I believe that the facts stated in this Witness Statement are true.

 

Signed ………………………………………………………..

 

Name ………………………………………………………….

 

Dated …………………………………………………………

 

As always - constructive criticism gratefully received!

 

Thanks

 

Madi's Mum

[AndyOrch]

spot on

 

Regards

 

Andy

[madi's mum]

Thanks for taking a look Andy - much appreciated, one last thing, can the witness statement be on behalf of both me and my other half or do we have to submit separate ones; or as it's me going to the court should I just write the one in the first person and get the OH to write a letter saying I am speaking on his behalf and that he agrees the contents of the statement?

[AndyOrch]

No individual statements,can be the same just diff defendents

 

 

Andy

[madi's mum]

OK, so I need to do the two witness statements one in each name, do I prepare two seperate sets of the supportng documents?

 

As my OH will not be attending court I believe he should write to the judge excusing himself - is that right?

 

ta very much!

[AndyOrch]

OK' date=' so I need to do the two witness statements one in each name, do I prepare two seperate sets of the supportng documents? Yes

 

As my OH will not be attending court I believe he should write to the judge excusing himself - is that right? If hes not required to attend

 

ta very much!

 

Andy

[madi's mum]

OK - I'll get that sorted and then get the documents off to the court and the Claimant.

 

Once again thanks for all your help!

 

Kindest Regards

Madi's Mum

[madi's mum]

Update: I have just received a 'Notice of Discontinuance of Proceedings' from their solicitors, it says:

"Take Notice that the Claimant herby wholly discontinues this action against the Defendant.

We certify that we have given Notice of Discontinuance of proceeding to every Defendant against whom the Claimant desires to discontinue."

I understand that this means they won't be taking me to court but can they still chase the debt or sell it on?