TBI Claimform - old HFC Credit card Debt - **WON** - default notice fee but NO default produced

[foolishgirl]

Canaan, not been burning the midnight oil like you & Caro & just come to read your witness statements.

 

I note Caro is going to help you go through the nitty but just a detail that may help - I realise you've made amendments to points 22 etc. Did you ever receive a default notice from OC? And also thinking ahead, they say they sent it you, have you ever requested proof of posting?

 

BTW, I think you've done a grand job here. Caro & friends will no doubt help you do the 'tidying up' but you should be really proud of the way you've put together this statement. It certainly puts to shame the crappy POC that was put tog. by supposedly professionals.

[Canaan]

Morning Caro.

The first I heard was when I got a letter from TBI's internal legal department telling me they were going to start legal action.

I can't take any credit for the words in the statement, they have been lifted from other posts

Canaan

 

duplicate post

Edited January 1, 2009 by Canaan

[atwozee]

Just looked at your DN again and to be honest I’m not sure if it’s valid – from my point of view the DN requests you to pay the full balance on the card – now a DN is usually required to request the payment of any arrears and not the full balance.

Requesting the full balance is not normally something a creditor can do without first issuing a valid DN for the arrears. That’s one of the reasons for issuing a DN – it’s a step towards termination of the account and it is upon termination that the balance can be demanded.

Section 87 (1) states:

Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement

Section 87 (1) (b) states:

(b) to demand earlier payment of any sum,

By demanding the balance on the account they are in breach of s87 (1) (b)

Just my opinion and to be honest because the agreement is unenforceable then it’s not something you need to worry about too much. On the other hand, by demonstrating that they can’t get statutory paperwork correct just strengthens your defence doesn’t it.

[banker_rhymes_with]

Hello Cannan!

 

I also think the Default Notice is invalid, as discussed by Atwozee. Primarily because they have asked for the full Balance and not the Arrears.

 

Without a valid Notice, if they went ahead to Terminate, then they have thrown away any Right to enjoy the benefits of s87.

 

However, in addition to Atwozee's observations, I also think the Default Notice is invalid because it is not set out in the Prescribed way, for example:

 

THEY HAVE DONE IT LIKE THIS

 

WHEN IT SHOULD BE LIKE THIS

 

OR IT SHOULD BE LIKE THIS

 

The words underlined are supposed to be given greater emphasis than the words next to them.

 

The extract below from my Defence against a nasty bank may help:

 

88. In addition to the failure of the Default Notice to allow the prescribed time frame, I note the Default is also deficient in the following areas: Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following:

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the Agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the Agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

 

89. The notice fails to include the following statement in the prescribed form as shown below (note the correct use of Bold Text):

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH”

 

90. The Default Notice also fails to include the additional statement in the prescribed form as shown below:

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

The relevant Legislation can be found here on CAG:

 

See: Consumer Credit Act (1974) and related Regulations

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

The above PDF can be found in Post #4 of the above Sticky Thread, and it's PDF number 6.

 

I hope this helps.

 

Cheers,

BRW

[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.

 

I would advise that the second paragraph is set out as this

 

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 or belief.

 

 

and the next para should deal with attached exhibits such as like this

 

There is now produced and shown to me a bundle of documents marked “DEF1”. The exhibit DEF1 contains copies [of the documents to which I refer in this witness statement]. (If there is more than one exhibit, introduce each one prior to referring to it and describe the contents.)

 

 

then on to the main points of the statement

[pt2537]

i see x20 is on the thread too, im sure he will have some invaluable info for you also,

 

I will try and pop back in a while to see what advice i can offer

[foolishgirl]

FWIW, I think you have a very valid point re. the default notice atwozee.

 

Also

1. did they terminate your account before you received this notice Canaan?

 

2. if you are saying you didn't receive a NoA, they have to prove that not only did they sent one but they are actually the assignees & have the legal right to issue the summons.

 

All fuel for the fire. IMO these people are stupid to embark on this claim, you just need to prove it...

[pt2537]

When you are including exhibits, you should make sure each one is covered with a covering sheet setting out the exhibit number such as like this

 

 

 

On behalf of: Defendant

Witness: [Initials and surname]

Number: [1st] [2nd]

Exhibits: [“DEF1”]

Date:

IN THE XXX COUNTY COURT Claim No:

 

 

 

BETWEEN

[________]

Claimant

and

[________]

Defendant

 

EXHIBIT “DEF1”

This is the exhibit marked “DEF1” referred to in the [1st] witness statement of [D E Fern] dated the day of 200

 

 

 

[surfaceagentx20]

The DN does seek the full balance. The amount sought on the DN correlates to the amount sought by the LBA and the claim form. It would be possible for the DN to correctly say the entire balance was owing if at the time the DN was served, the full balance owing was the same as the amount in arrear. The PoC says the amount demanded in the DN was the arrears. If the two were in fact different so that in truth the arears were less than the full balance, then the DN was ineffective in terms of giving rise to an ability to recover the excess over the arears where the DN was not fully complied with. It is a question which can only be answered by checking the statement of account. It is worth remembering the agreement was taken out in 1998 and the last payment was £20.00 made in November 2004 (at least that is what is said in the PoC). It seems to me therefore that there would be some grounds to suppose that arrears and total balance were the the same when the DN issued in February this year. But check.

 

Permission to amend the Particulars of Claim was given on or before 16 December. The earliest statement of the Amended PoC arriving which I have seen is yesterday. May be they arrived earlier, if so when?

 

I recomend you put in an Amended Defence.

 

Regarding your witness statement, paragraphs 2 to 24 deal with a whole raft of law about improperly executed agremeent. Keep all that stuff for your skeleton argument and legal submissions to the court. Instead and on ths point, just identify in your own words, the particular aspects of the Regulations you say the bank neglected to comply with and which render the agreement improperly executed. I've looked all over the statement and I can't say such particulars hit me between the eyes. Ideally these particulars will go in your Amended Defence.

 

The statement does not deal with

1. the difficulties which lead to your falling into arrear
   
2. the amount claimed and the accuracy of the claim
   
3. the default notice
   
4. termination
   
5. assignment
   

When is the hearing fixed to take place?

 

x20

[Canaan]

The court date is the 19 of january.

The letter from the court telling me they had approved the changes to the POC arrived on the 17th of december

I am too tired....there is not enough time to do the things suggested defence etc.. i dont know if the amount is correct on the DN....I have attached the witness statement including the work i have done on it today....i cant cope with any more of this today...

[foolishgirl]

Don't get downhearted Canaan - you're only tired 'cos you were burning the midnight oil. There is now lots of info. on here for you to absorb in a 'quick' read. Look at it again later or tomorrow & take it bit by bit rather than looking it as a mountain.

 

The info you have put together in your witness statement is good & should stand up well for you but you have to use it at the right time. x20 & pt know their stuff - you would be wise to follow their advice & amend your defence to reflect their input.

[Canaan]

Thanks FG.

X20 The amended POC arrived from the solicitors on the EDIT 19th. Do I have time to submit an amended defence? The court case is on the 19th of January taking into account xmas and new year holidays I don't think I have the time.

Canaan

Edited December 21, 2008 by Canaan

[Von Greenbach]

Hi Canaan

 

Just to comment what others have said, try not to burn yourself out I know it's easy for me to say, but I've been there having had 2 nervous breakdowns, I appreciate the clock is ticking against you, but allow yourself some breathing space, the more stressed and tensed you become, the harder it is for information to sink in.

 

I mentioned in a previous post, I'm not in a position to offer you any help, but please take comfort I'm following your thread in the background and supporting you.

[Canaan]

Thanks Von Greenbach.

The problem is there isnt enough time to take a breather

I now need to know urgently if I have enough time to submit a new defence and how I go about it.

Canaan

[caro]

Just an idea here which hopefully a legal bod may be able to answer quite quickly. Could Canaan apply for an adjournment on the grounds that the lateness of change regarding POC means she has insufficient time to adequately amend her defence? Normally a defendant has 28 days to prepare a defence.

 

If this can be done, would the application to adjourn require a fee on top of the £75 to amend the defence?

 

I really don't understand why the POC can be amended, yet the defendant isn't able to amend the defence without paying.

[Canaan]

Thanks to all for your help and support.

I am wondering is the attached witness statement more suitable?

Also X20 you mentioned in your post "legal submissions to the court" please can you tell what this means?

 

I don't know where they have come up with £20 as a last payment, I had been paying between £2 and £5 per month, why would I suddenly pay £20 doubt it is important and I cant prove it either way anyway.

Canaan

[foolishgirl]

I really don't understand why the POC can be amended, yet the defendant isn't able to amend the defence without paying.

 

Me neither Caro. I understood that if there was no change to the 'substance' of the claim/defence, it could be done informally. In this case, surely it's only the terminology i.e. credit agreement as opposed to loan; Canaan is not denying the existence of the account or the claimant's right to claim, therefore not substance.

 

Please could a legal guy explain if you have time?

[Von Greenbach]

Please could a legal guy explain if you have time?

Hi FG

 

I see PT (Paul) is online, have you tried the red triangle? Just a thought.

[foolishgirl]

Thanks for pointing that out VG but pt is very busy right now. I'm sure he'll drop by if he has time to answer qs lke this that are really (at the moment) extra info. to add to a pot of knowledge. Looks like Canaan should apply for an amendment in line with x20's advice.

[Canaan]

I dont know how to apply, I don't know if I have the time to apply, I dont know what to write to the court to help support my application as I may be refused at this late stage.

I pm'd x20 today but no reply as yet.

Canaan

[caro]

Phone the court in the morning Canaan. You've done as much as you can and you've done brilliantly. I just don't see how you can be expected to have the POC changed, and no reasonable time allowed to amend your defence to suit. Normally court bundles are expected 14 days before a hearing so I don't understand why yours is due now. If your hearing is 19th January, your bundle would normally be expected on 5th January.

 

Explain to the court that you've tried very hard to get everything done in time but feel that you could do better with sufficient time. Ask them if there is any way you can have more time.

 

You've done what you can.

[pt2537]

Need some urgent halp on this as soon as i think i have got it straight in my head I see something else that pops up and throws a spanned in the works, the defence I sent to the court is this

 

1 The Defendant denies having entered into a loan agreement with HFC Bank plc (the bank) or otherwise receiving an advance of money with an obligation to repay it to the bank. If the loan agreement was regulated under the Consumer Credit Act 1974 the same will have been made in writing. If the Claimant intends to rely on a written agreement in this claim, no such agreement together with any general conditions was attached to or served with the Particulars of Claim, contrary to the provisions of CPR PD 16 paragraph 7.3

2 Paragraph 2 of the Particulars of Claim is denied.

3 No admissions are made as to paragraph 3 of the Particulars of Claim.

4 The Claimant’s entitlement to payment of the sum of £3,028.26 and to interest is denied.

 

Now the other side have changed the POC to say credit card and have finally come up with an application form they are saying is an agreement SO looking at other witness statements they seem to be based on the defence, this is not an option in my case. Do I just submit the witness statement inserting in the points about the lack of properly executed agreement, is the original defence going to be a sticking point here??

Many thanks

Canaan

 

 

Hi Canaan

 

This change of particulars of claim doesnt sit tooo well with me.

 

did you file this defence with the court after you recieved the claim?

 

If you did, have you recieved any notice that an application to amend the statement of case has been filed?

 

I have not had the chance to read the whole thread so apology's if this has already been answered

 

the CPR does not allow AFAIK for a claimant to amend his statement of case after a defence has been filed unless there is agreement of the defendant

 

the only other way they could press this through is by way of an application on a N244

 

So i am confused as to how they have gotten away with this and thus left you at a distinct disadvantage as a result

[Canaan]

Hi Caro.

The letter from the court just says 14 days, I am counting 14 working days not just 14 days, can anyone please confirm what format I should be using? If it is the 5th of January then I will sleep tonight for more than a couple of hours for the first time in a week!

I have already phoned the court to ask if I would be given more time to amend my defence as the amended POC and the agreement both arrived so late in the day, I was told I needed to use a form, can't remember which one now, and pay £75. I did say that it was a bit unfair that the claimants could break so many civil procedure rules that leave me at a disadvantage but she just repeated the form name and £75

Canaan

[pt2537]

Canaan

 

Has the other side been authorised by the court to amend their claim?

[Canaan]

pt2537 said:

Hi Canaan

 

This change of particulars of claim doesnt sit tooo well with me.

 

did you file this defence with the court after you recieved the claim?

 

If you did, have you recieved any notice that an application to amend the statement of case has been filed?

 

I have not had the chance to read the whole thread so apology's if this has already been answered

 

the CPR does not allow AFAIK for a claimant to amend his statement of case after a defence has been filed unless there is agreement of the defendant

 

the only other way they could press this through is by way of an application on a N244

 

So i am confused as to how they have gotten away with this and thus left you at a distinct disadvantage as a result

 

Hi PT.

The other side did use a N244 to get this through, in part C they state that an order permitting amendment of these errors would not materially affect the substance of the claimants claim against the defendant nor prejudice the defendants position in these proceedings" They also claim that I refused permission for them to amend the POC which is not true.

 

When I rang the court to ask about amending my defence the lady who answered the phone couldnt understand what my concerns were as the changes were "minor" and were only a few misspelled words

The solicitors know exactly what they are doing in this case and I dont know enough to play legal games with them at this stage.

 

Canaan

 

pt2537 said:

Canaan

 

Has the other side been authorised by the court to amend their claim?

 

Yes they have I got the letter from the court on the 17th saying the changed had been authorised, and a letter with the amended POC from the claimants sols on the 19th, basically the original POC with the errors crossed out in pen and the corrections hand written in.

Canaan

 

pt2537 said:

Hi Canaan

did you file this defence with the court after you recieved the claim?

 

My defence was filed based on the original POC which incorrectly said personal loan instead of credit card

 

If you did, have you recieved any notice that an application to amend the statement of case has been filed?

 

I received a letter on the 10th of December from the sols (oooo look at me using abbreviations:)) enclosing a copy of the application form they say they sent to the court the day before to amend the POC.

 

I have not had the chance to read the whole thread so apology's if this has already been answered

 

No worries I know it's becoming an epic

 

Canaan

 

I have a query........

The amended POC does not have a court stamp, or a claim number anywhere on it. Not on the front page or the second page

Should they be there?

Canaan

 

On top of everything in the last few post I have a couple of urgent questions I need to get a reply to ASAP today if at all possible:)

1) When a court says "14 days" on court paperwork do they mean 14 working days or 14 days.?

2) What does "legal submissions" mean in relation to a court bundle/witness statement?

Thanks

Canaan

 

Ikkle bump