Arrow/Shoos claimform - old MBNA debt - settled by Tomlin - drydens now write saying pay us not Arrows?

[toxicdebt]

They quote Paragraph 8f of the agreement and go on to say I now have to pay the whole amount owed within 14 days. Here is both the DN & the DN envelope...

[toxicdebt]

Sorry that attachment of my DN is a little small. This one is bigger in PDF format...

 

EDIT: and bigger envelope

[citizenB]

S'ok, I found the information earlier in your thread. That envelope is a UK Mail 2nd class business service. So it would actually take 5 (FIVE) days to reach you minimum because their delivery schedule is to the Royal Mail sorting office in order to deliver the "final mail" UK Mail don't do doorstep deliveries.

 

The Default Notice - they advise the clause you have breached is "8f"..

[toxicdebt]

Oops forgot to answer your question regarding when my WS has to be in...

 

This Friday

[citizenB]

 

 

In respect of the clause alluded to within the Default notice which is contended to provide an entitlement to demand full balance outstanding to be paid immediately on demand, the Defendant avers that the clause 8f is an attempt to contract out of the consumer protections of the 1974 Act and which is not permitted and therefore is void by virtue of s173 Consumer Credit Act1 974. The Consumer Credit Act 1974 stipulates circumstances, which must be followed by the creditor in the event that the debtor breaches the agreement. S87 (1) of the Act is explicitly clear that the service of a default notice is required before the creditor can become “Entitled” to demand earlier payment of any sum.

 

Furthermore s89 expressly sets out that if the debtor remedies the breach then the Act states that the breach is considered not to have occurred.

 

Thereforethe clause 8f referred to in the Default Notice, which states that the debtor must pay the full balance when the debtor breaches the agreement by failing to pay an installment is not in keeping with the consumer protection requirements s87, 88 & 89 of the 1974 Act.

 

Further to the above, s129 of the 1974 Act provides the Debtor with the right to seek a Time Order from the Court. Where the Debtor is unable to maintain his instalments, the Creditor must firstly serve a default notice which per the requirements of the Consumer Credit Default Enforcement and Termination NoticesRegulations 1983 must advise the debtor that he can seek a Time Order. The Defendant avers that the clause 8f denies the Defendant this entitlement, as the clause requires full and immediate payment of the full balance.

 

Furthermore, s76 and 98 of the 1974 Act deal with the requirements where there is a non-breach scenario, therefore the 1974 Act expressly sets out what is required by the Creditor before he can become entitled to seek to recover monies from a debtor in circumstances where the Debtor hasn’t breached his contract. Both provisions (breach and non breach) provide an entitlement for the debtor to seek a Time Order from the Court. To remove this entitlement, which the Defendant avers is what these two clauses do, is a clear attempt at contracting out of the consumer protections of the Act and is prohibited by s173 of the Act.

 

 

The Default notice is a bad notice. I refer the Court to the recent ruling of HHJ Chambers QC sitting as a Judge of the High Court in Keith Harrison vs Link Financial Limited EWHC 2011 B3 where at paragraph 75 whenaddressing a default notice he stated………

The notice of enforcement

75. The notice of enforcement was a statutory pre-condition of enforcement. It was abad notice and enforcement CANNOT be attempted in dependence upon it.……………………….

 

Accordingly the Claimant cannot enforce the agreement due to the fact the notice is indeed bad for the reasons stated above.

 

I accordingly ask the Court to dismiss the Claimants summary Judgment application. It is evident that there are issues that ought to be dealt with at trial and which provide the Defendant with a complete defence to the Claimants claim.

 

 

To counter their statement at Points 9 and 10 of their WS re..

 

9 & 10 Default Remedy.

 

Again I think this is misleading whilst SI 1983/1561 does not mention "arrears" - it does state what is required to remedy the breach.

[citizenB]

Right, I think I have backed up all the points I raised from their WS. Hopefully andy will pop in soon

[toxicdebt]

Wow. Thank you so much citizenB. Ill get started on my witness statement tomorrow. Do I need to do a Skeleton Argument too, or just a witness statement?

 

Andy has PM'd to say he's going to take a look shortly

[AndyOrch]

Hi Toxic

 

This you are working on is a WS correct? If so is it in objection to their application for SJ ? If so have you received theirs yet?

 

A little confused as you stated in your PM you wanted me to check a skeleton Argument?

 

Regards

 

Andy

[toxicdebt]

With regard to points 12 & 13 about my hving two different agreements (Skel4.pdf); In their SJ Witness Statement they state that its obvious that one was sent out and then I delayed sending it back so a second one was sent out and I also signed and sent that back too (or words to that affect).

 

Although not mentioned in their Skeleton Argument, their witness statement also addresses that there are two account numbers. They then explain this is normal practice when MBNA assign the account (sell it) they issue a new number. Is this correct?

 

Ill scan the above two parts of their SJ WS tomorrow.

Edited July 16, 2013 by toxicdebt

[citizenB]

Andy MBNA's skeleton is in post 386 and 387.

[toxicdebt]

Hi Toxic

 

This you are working on is a WS correct? If so is it in objection to their application for SJ ? If so have you received theirs yet?

 

A little confused as you stated in your PM you wanted me to check a skeleton Argument?

 

Regards

 

Andy

Hi Andy

 

Yes I was given until this Friday to submit any written evidence for the adjourned SJ Haring.

They sent me a Witness Statement in support of their SJ Application, but their counsel produced a Skeleton Argument document at the last hearing which I have posted on page 20 - post 386.

[AndyOrch]

But have you received their WS in support of their application....skeleton and WS are two different animals and that what you have uploaded does not support their application and is (orally) inadmissible.They are debarred from submitting any evidence (orally) so its beyond me how they can make an application for SJ and rely on written evidence only?

 

The adjourned hearing Toxic that is for what and when?

[toxicdebt]

Yes I received a WS in support of their SJ Application. They put their application in when I put mine in for a strike out and asked for it to be heard at the same time (last Friday). My Application was dismissed due to them being punished already by being barred from giving oral evidence at trial. The judge adjourned their SJ hearing after I protested That i had not been given time to prepare. So thats now happening on the 6th Aug. The Judge then told me I had 7 days to submit any written evidence in support of my objection to their SJ.

 

So the hearing on the 6th is for their SJ hearing.

 

I thought they were debarred from "giving oral evidence at trial". I didnt know this included submitting an application for a SJ hearing.

 

Why is their Skeleton Argument Inadmissible?

 

Im confused now.

Edited July 16, 2013 by toxicdebt

[AndyOrch]

Have you uploaded it ? does it contain a statement of truth by the person that drafted it?

[toxicdebt]

I didnt upload it as its quite a few pages, but I will tomorrow. It does contain a statement of truth by the Shoosmiths Solicitor who's been dealing with this case. She wasn't at the hearing its was someone else from a different company who said he was 'Counsel' for the claimant.

[AndyOrch]

I didnt upload it as its quite a few pages, but I will tomorrow. It does contain a statement of truth by the Shoosmiths Solicitor who's been dealing with this case. She wasn't at the hearing its was someone else from a different company who said he was 'Counsel' for the claimant.

 

Now I wonder why that was

 

Yes if you could upload the WS Toxic the Skeleton means nothing with regards to their application for SJ ...its the WS that you must respond to.

 

Regards

 

Andy

[toxicdebt]

I will do Andy. Ill let you know when its up. (should be by 2 pm at the latest)

 

Can I just recap on something you mentioned....

 

Are you saying they are not allowed to submit an application for a SJ as they are debarred from giving oral evidence? and why is their Skeleton Argument Inadmissible?

Im a tad confused now.

[AndyOrch]

The Skelly is in support of the claim...not their application for SJ..therefore its irrelevant as council cant present it they are debarred.The WS is in support if their application for SJ...now if they are debarred from submitting evidence (orally) for trial then it follows they are also debarred for their application for SJ.

 

So fun times when all they can rely on is written evidence and cant present it orally:madgrin:

[toxicdebt]

The guy who came up handed his skelly to me and the judge said it referred to their witness statement, which it does refer to within the points contained in it.

 

Sorry Andy, so can I say at the next hearing that they cant present the skelly as they are debarred? And are you saying he cant speak at all or submit any written stuff at the next hearing?

[AndyOrch]

They are debarred from orally presenting evidence...they can submit written.Summary judgment applications are not supported by skeleton arguments they are supported by Witness Statements.The Skelly has nothing to do with their application you refute their WS.

[toxicdebt]

Right. Got it. (Sorry I am so dim on these matters). So Ill post up their WS tomorrow, write my WS refuting theirs, and tell the Judge to tell their guy to shut up when he speaks? Is that right?

 

Im especially confused over whether he can speak as the Judge knew about the debarring but let him speak all the way through the last hearing, he even said that if she struck the claim out he would simply re-issue the summons and start from the beginning again, to which she nodded in agreement with him.

[AndyOrch]

Right. Got it. (Sorry I am so dim on these matters). So Ill post up their WS tomorrow, write my WS refuting theirs, and tell the Judge to tell their guy to shut up when he speaks? Is that right? I would rather you objected than said that

 

Im especially confused over whether he can speak as the Judge knew about the debarring but let him speak all the way through the last hearing, he even said that if she struck the claim out he would simply re-issue the summons and start from the beginning again, to which she nodded in agreement with him.

 

Speaking and presenting argument/evidence are 2 different things Toxic.....they are debarred from witness evidence...... yes I would agree if it was struck out then they probably would just re submit...however it is possible to object to a claim that has been struck out once and the claimant brings the same claim again...providing you request judgment at the time the matter is truck out you would then argue/rely on Res Judicata.

 

But lets save that for another day Toxic...I have had a hard day.

[toxicdebt]

Haha. Okay Ill object rather than demand he shuts up .

 

Many thanks Andy. I dont know what Id do without this forum and the advice I've had from you and the others. It is very much appreciated.

 

Enjoy the rest of your evening.

[Old Cogger]

deleted

[toxicdebt]

Here is their Summary Judgement Witness Statement (Written by a shooey's solicitor and not the chap whop attended the last hearing (5 pages this post and 2 in the next post)...