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

[toxicdebt]

...and here are the last two pages...

[AndyOrch]

hi Toxic

Just running through your uploads...it is noted that there is no grounds referred to as to the reason why they seek SO/SJ.

 

Point 6 page 2 is that true?

 

Point 7 did you not serve a copy of your application on the Claimant?

 

Point 9 is that true?

 

10/11 is weak and simply quotes the CPR but not their basis for the application

 

13 to 18 bla bla bla just because you admitted to entering into an agreement does not validate their reasoning for issuing the claim.

 

19 Your defence does disclose reasonable grounds ...if they cant disclose the requested and prove....then the claim is invalid.

 

20/21/22 leave for you to validate if that's the truth

 

23/24 bla bla bla

 

25 If they cant validate or prove then the assignment if you have not acknowledged/responded or made payment remains incomplete and the burden of proof remains with them.

 

26- 28 deals with your application and them throwing their toys out of the pram....legally worded...it still remains the same they failed to comply.They are also requesting that not all of the claim be struck out.....so its impossible to wonder which part they would like to be left?

 

29 States the value of the assignment...but not how much they actually purchased it for.

 

and finally 30 all the excuses in the world and a little grovelling.

 

Now you have to draft your response and deal with it number by number as I have above and refute/state the alternative.

 

Regards

 

Andy

[toxicdebt]

Hi Andy...

 

Point 6:

They wrote to me once after I submitted my strike out claim asking me to withdraw my defence and fill in a consent order. They set a deadline of 5th July for me to reply or they would issue an application for SJ. I didnt reply.

 

Point 7.

Sadly I forgot, but I explained this to the Judge in my hearing that it was not law that I had to, and in any event the Claimant had not served many things until ordered to by the court so I feel this cancels out my one 'lack of courtesy' event. She nodded and moved on. They have also lied in their WS in that they state they have not had any correspondence from me since last year. Everything I have sent I have special delivery receipts and downloaded their signatures as proof of them receiving it. Ive got loads of examples of this.

 

Point 9:

No. They only wrote once setting a self imposed deadline for me to reply be the 5Th July or they would apply for a SJ.

 

Point 26 - 28:

Too late my application for strike out was dismissed due to them already being debarred.

 

Point 29.

Should it state the amount they paid for it?

 

Point 30:

Was adjourned anyway.

 

Many thanks Andy. Am I right in thinking I lay this out as a Witness Statement?

[toxicdebt]

Oh what about the fact the Assignment letter is dated two days before MBNA records show the debt as sold?

[AndyOrch]

Hi Andy...

 

Point 6:

They wrote to me once after I submitted my strike out claim asking me to withdraw my defence and fill in a consent order. They set a deadline of 5th July for me to reply or they would issue an application for SJ. I didnt reply.

 

Point 7.

Sadly I forgot, but I explained this to the Judge in my hearing that it was not law that I had to, and in any event the Claimant had not served many things until ordered to by the court so I feel this cancels out my one 'lack of courtesy' event. She nodded and moved on. They have also lied in their WS in that they state they have not had any correspondence from me since last year. Everything I have sent I have special delivery receipts and downloaded their signatures as proof of them receiving it. Ive got loads of examples of this.

 

Point 9:

No. They only wrote once setting a self imposed deadline for me to reply be the 5Th July or they would apply for a SJ.Then state that in your response

 

Point 26 - 28:

Too late my application for strike out was dismissed due to them already being debarred.

 

Point 29.

Should it state the amount they paid for it? No but the way the cry you think that they had paid full price

 

Point 30:

Was adjourned anyway.

 

Many thanks Andy. Am I right in thinking I lay this out as a Witness Statement?

Yes use theirs as a template

 

So deal with each point/paragraph/number and reply and add and argue " It is denied.....I will contend...... etc etc.

 

NoA vary to the DoA in date...thats straw clutching...but asking them to prove it was sent well thats devastating to their claim.

 

Post up when completed and I will give it a few tweaks and additions.

 

Regards

 

Andy

[toxicdebt]

Here is my Witness Statement draft...

 

IN THE XXXXXX COUNTY COURT CLAIM NUMBER XXXXXXX

 

BETWEEN

Global Arrow Ltd

Claimant

and

Mr Toxic Debt

Defendant

………………………………………………..

WITNESS STATEMENT OF Mr Toxic Debt

………………………………………………..

I, Mr Toxic Debt of xxxxxxxxx , am the defendant in this action and make the following statement in response to the application made by Global Arrow Ltd for summary judgment.

1) I Contend the application made by the Claimant on behalf of Arrow Global Ltd Guernsey, for Summary Judgment and invite the Court to proceed with a full hearing as planned.

2) I deny having received from the Claimant a Notice of Assignment. Neither the Claimant or MBNA provided a Notice of Assignment pursuant to Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974 until ordered to by the court. I put the claimant to strict proof they did send the Notice of Assignment.

3) I admit that a Default Notice was served by MBNA

4) I submit that the Default Notice is invalid and and is not pursuant to the CCA1974. I contend that I can prove the Default Notice is not compliant in its unenforcability.

Background

Prior to receiving the Court Summons issued on behalf of the Claimant, Arrow Global Ltd, I had not received any correspondence or any other form of contact whatsoever from Global Arrow Guernsey LTD.

All requests for copies of documentation with regard to this claim were not met by the claimant, this despite specific court directions to do so. Only after threat of a strike out was I given the documents I required for my defence. Court Direction dates & deadlines have been repeatedly missed by the claimant, resulting in a reduced time-scale for my preparation and a distinct disadvantage in my ability to compile a suitable defence and specifically my Witness Statement. The Claimant was so late in sending the List of Documents: Standard Disclosure form that the 7 days allowed for any documentation request had already expired. Since my written request for documentation detailed within their Standard Disclosure form I have on the 5th March 2013 finally received copies of the documents I have repeatedly requested including, for the first time, the Notice of Assignment which brings a further document into focus which I intend to use within this Witness statement due to its obvious relevancy now that I finally have seen the Notice of Assignment.

Application to Adjourn trail

5) The Claimant has asked the Court to vary the Notice of trial dated the 6th June which listed the trial for 13 August 2013. I have been preparing for this Court trial for many months. The fact that the Claimant has dragged their feet and failed to submit documentation at every court direction deadline has resulted in the trial already being put back a full month. I consider the leniency already demonstrated by the Court toward the Claimant more than sufficient and the trial date should stand.

6) “The claimant has been writing to the defendant with a view to reach a settlement agreement”. The claimant has written just once offering a settlement agreement - on the 21 June the Claimant wrote inviting me to withdraw my defence and sign a Consent Order – which they included with the letter. In return they offered me a reduced fixed costs bill of £290. They have previously repeatedly sent me numerous Costs Estimate detailed breakdown’s which totaled in excess of £5000 each and two letters introducing themselves, informing me they are seeking their clients instructions & considering the case. The rest of the settlement letter proceeds to pick fault with each individual point contained within my Witness Statement, which they have had sight of for the last 5 months. As a typical example The Claimants letter points out one aspect of my Witness Statement that call on Christmas eve does not constitute harassment as it is a normal working day. However they fail to understand that the call was to inform me that someone would be calling at my door in person tomorrow - 25th December – Christmas day, unless I paid him some money right now over the phone. I put it to the court that If my defence is so week why have they waited 5 months to apply for a summary judgment? Surely if my defence is so week they would have spotted this upon receipt of my Witness Statement and applied for a Summary Judgement there & then? Further to this I find it very coincidental that they apply for a Summary Judgment at exactly the same time as my application for a strike out due to their repeated failure to comply with court directions.

7) Now irrelevant as the application was dismissed.

8) I refer point 5 within this Witness Statement

9) “I confirm the delay in making this application has been due to awaiting a response from the defendant, despite previous attempts to settle with the defendant”. As previously stated the Claimant has only once written offering a settlement by requesting I withdraw my defence. This was sent on the 21st June. Within that letter they self-imposed a deadline of the 5th of July for me to respond to them by. A self-imposed deadline.

10) I respect the court may give summary judgment if the defendant has no real prospect of successfully defending the claim. It is denied that my defence is weak. I will contend that the default notice was not sent out in time for me to resolve the matter within the allowed timescale. I have the envelope proving method of post. I also can disprove the claimant’s suggestion that the Default Notice was posted 1st class.

Application to Strike Out / Summary Judgment

11) Everything the Claimant states to provide evidence of my defence being successful is based on opinion, suggestion and does not provide any proof to the matter, such as their statement that the Notice of Assignment was indeed sent out. Where is the proof? I had to obtain the Notice of Assignment via way of Court order before they would submit it. Every point in my Witness Statement can be backed up with proof such as the Default Notice envelope for example. I really don’t want to hand the claimant any more of an advantage than they have already gained by attempting to bulldoze their way through this case by ignoring court directions and dismissal of my Witness Statement points via use of vague opinion, by divulging information in advance of a trial. They seem to think that while they can state my Defence is deemed to failure due to vaguely stated reasons without proof. This demonstrates they have no grounds for a summary judgment and this case should now proceed to trial with this application being dismissed.

Background

12) “ The defendant admits he entered an agreement with MBNA”. This is not denied. The point of my defence is that this alleged debt should not have been sold as it was placed in dispute with the original creditor while OFT were investigating my complaints The Claimant made no attempt to contact or discuss the issue, instead they issued a summons (to an incorrect address) without prior contact. Furthermore the claimant has no legal right to stake claim to legal ownership as there are a number of deficiencies with the way it was discharged by the original creditor and deficiencies on behalf of the claimant such as failure to send a Notice of Assignment or provide proof that they did.

The Loan

13) – 16) -

The Defence

14) This was actually the first correspondence I had received from the claimant. Prior to this I didn’t know Global Arrow Guernsey existed.

15) I will at trial defend the claim on the aspects laid out in this Witness Statement and my original Witness Statement that the claimant has no legal right to lay stake to this claim. I did not receive a Notice of Assignment and put the claimant to strict proof that I did. The Default Notice did not allow the correct amount of time to resolve the issue by the time I received it (11th September 2009). The stated date for remedy was 24th September 2009 with falls short of the 14 days allowed under law. The envelope [Exhibit1] I received it in states it was sent out via UKMail – as were all of MBNA’s correspondence. UKMail standard delivery times clearly state 3 days. UKMail do not deliver to the doorstep outside London so it is instead delivered to Royal Mail who treats such litters as second class. Royal Mail Practice Direction for second class mail clearly states letters will be delivered “on the forth working day” [Exhibit2]. Therefore this letter was not and cannot possibly have been delivered when the claimant states. I have laid out case law with regard to the Default Notice being unenforceable in a court of law within my original Witness Statement (point 11) I also put the claimant to strict proof that it is valid. This statement still stands.

16) I believe I have a very strong case, backed up with proof and case law to most if not all points within my original Witness Statement, for the reasons set out within this and my original Witness Statement.

17) The Claimant has provided the court with a copy of the agreement. This differs to the copy that I received from the original creditor when requested three years ago during my dispute with them. The claimant offers a simple explanation that I must have delayed sending the agreement back so a second was sent to me, which I also sent back. This is purely an assumption. By definition a Copy does not have to be the actual document, it can be reconstitute. I suggest that one, or the other, or indeed both, of these documents are fabricated to some extent and would like the claimant to produce the actual document to clear this confusion up. Until we have sight of the actual document we cannot rely on either of the two alleged agreements as they are not one of the same.

18) I maintain did not receive a Notice of Assignment until the claimant was ordered to submit the standard disclosure list or be struck out. Only then did I receive it. I have copies of previous correspondence [Exhibit3]requesting the Notice of Assignment with Special Delivery receipts and copies of signatures from the claimant upon delivery by Royal Mail. All were ignored. Furthermore the Notice has discrepancies in that it states a second debt recovery company who had previously written to me stating that due to the dispute with MBNA they would be handing the case back to the original creditor and removing all records of me from their systems, would be acting on behalf of the Claimant – Arrow Global. This breaches a number of OFT guidelines, namely no more than once debt collector should persue a debtor at any one time. There is also a discrepancy with regard to the date of assignment and the date of sale to the claimant. The Notice of Assignment pre dating the sale by two days.

19) RMA, Debt recoveries, Optima & Wescott’s all refer to the reference ending 06. Only now am I aware of a different reference ending 08. We only have the Claimants word on this, without proof doubt should remain. All the above handed the case back to MBNA.

20) The default Notice was sent via UKMail standard delivery. As explained in point 18; There is no possibility this was delivered when the Claimant states as it has to be collected by UKMail and delivered to Royal Mail who then treat it as second class.

21) The evidence provided by the Claimant includes illegal charges.

22) No particularisation is needed as the claimant states in point 25 of their witness statement themselves that the “MBNA were entitled to assign the benefit of the sums owing by the defendant and the claimant provided notice to the Defendant of the same” – Which they did not, and I put the Claimant to strict proof that they did provide a Notice of Assignment.

The court is invited for the reasons above to dismiss the Claimants Application for summary judgment.

Statement of Truth.

I believe the facts stated in this statement are true..

Mr Toxic Debt

 

IN THE XXXXXX

COUNTY COURT

CLAIM NUMBER XXXXXXX

 

BETWEEN

Global Arrow Ltd

Claimant

and

Mr Toxic Debt

Defendant

………………………………………

WITNESS STATEMENT OF

Mr Toxic Debt

………………………………………

[AndyOrch]

You only need one header Toxic remove the bottom one........your application to SO is that still yet to be determined...at the same hearing?

[toxicdebt]

Hi Andy

nope. they dismissed it at last Fridays hearing.

 

Okay thanks Ill remove the bottom header.

[AndyOrch]

Ah ok I wasnt sure....the rest is ok ...you simply refute each paragraph and show that what is stated is not the truth and state your version of events.

 

Best of luck

 

Regards

 

Andy

[toxicdebt]

Many thanks for all the help Andy. Ill try my best.

[toxicdebt]

One more thing Andy... If their guy refers to his Skeleton Argument that he submitted last hearing in preparation for his SJ Application hearing, can I stop him and how do I do it?

[AndyOrch]

The only thing that they are debarred from is giving oral evidence...therefore they can not call a witness.They cannot really validate their WS because the person that drafted it cannot be relied on to give evidence (orally).

The skeleton argument can be presented and is in view of the whole claim...the Skelly does not support their application for SJ...the WS does.

 

Regards

 

Andy

[toxicdebt]

I received an "Amicable offer" from Shoo's today. £9k within 289 days. That amounts to a £2.5k discount. They must think I have money! I dont have £90 never mind £9k!

 

Bizarrely they sent two letters in one envelope one with a paragraph about what they will do If I refuse their 'kind offer' and one without this explanation. I've uploaded the one with the explanation of what they will do if I refuse.

 

Needless to say I am not in a financial position to accept this offer but should I reply to it or just ignore it?

[AndyOrch]

What date is set for the trial Toxic and what date is on the PT 36 offer?

 

There seems to be a jump in continuity from page 1 to page 2 " as referred to above you will....???????? This offer will remain open for acceptance......

 

 

Here is the relevant CPR for you to peruse :- http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part36

 

Regards

 

Andy

[toxicdebt]

Hi Andy

The full trial is set for the 13th August. The Summary Judgment trial is on the 6th August. Both Letters are dated 19th July.

 

Well spotted, there is deffo a bit missing. I think they included it in the second letter contained within the same envolope, but this one gives me a deadline of the 2nd July to respond, which pre dates the date on the letter. how strange! This second letter doesnt contain the bit about what they will do if I refuse their offer.

 

Here is the other letter that was also in the envelope...

[AndyOrch]

Mmmmm offers only open until the 2nd July and dated 19th July:madgrin:

 

OK yesterdays was a PT 36 offer and its consequences if you refused dated 19/7

Todays is a Consent/Tomlin Order with an acceptance date of 2/07 I assume thats Aug 2

 

I wonder which one was really intended?

[toxicdebt]

They messed up putting both in the same envelope I guess.

 

I also assumed they meant 2nd August.

 

Tomlin order?

 

Should I reply to either /both? (obviously I cant accept).

[AndyOrch]

You should understand the severity and consequences of the Part 36 offer in particular...its a win win situation for them which will have enormous impact on the costs which could double /treble the debt value.The fact its been served now has great impact and your case irrespective of whether you accept or refuse it .....its in the system.

The second offer is by way of a Consent/Tomlin Order which restricts the costs to standard basis in Fast Track.I appreciate that 289 days equates to 9 months which is a payment of £1000 pm (excluding costs).

 

Given the options open and in view of a result that your defence could fail I would be of a mind to try to negotiate the Consent to extend the payment term.What ever else is part of the proposed consent is unknown (The schedule) IE what happens in the event of default ...costs...judgment?

With that in mind and that you have until 2nd August to agree you really need to thrash out some agreement with view to accepting the Consent.

 

If the Part 36 does come into play you will have to pay costs on an indemnity basis which will accrue interest up to 10%.

 

Please act swiftly and give this some serious thought Toxic.

 

Regards

 

Andy

[toxicdebt]

Thanks Andy, Understood.

 

How does 289 days equate to 3.5 years?

[AndyOrch]

Thanks Andy, Understood.

 

How does 289 days equate to 3.5 years?

 

 

Woops .9 months corrected

[toxicdebt]

Thanks Andy.

Im going to contact them, but there is no way I can afford that. Im going to need more like 10 years.

 

*takes deep breath* here goes.....

[toxicdebt]

Oooookay, Ive composed an email to Shoo's. In it Ive pointed out that they would require way more per month than I earn. Ive gone on to inform them exactly how much per month and how much Tax Credits I receive.

 

Is this a good idea? or should i not tell them that at this stage?

[citizenB]

I think if you let them know now, then at least they are aware and saves dragging things out.

[AndyOrch]

Anything you send Toxic should be marked Without Prej save as to costs during mediation.

 

The fact that a PT36 as been served must remain outside the court and the DJs attention until the result is decided.Of course you could go to trial and win and the serving of the PT36 strikes me as desperation and covering their bets and forcing you into mediation particularly as you are LiP and this is after all a civil money claim.

I really am struggling what to advise Toxic after all its yo that will present the case and you that could be saddled with this debt and costs.

 

You can only offer what is comfortable and affordable whilst being realistic given your financial situation at the moment.

 

I have and will be giving it further thought as the day progresses so dont send any email just yet...try to negotiate by telephone in the meantime.

 

Regards

 

Andy

[toxicdebt]

Thanks citizenB. That was my thinking, just wanted to make sure I wasn't jeopardising anything.

 

By the way I included your section about Clause 8f of the Default Notice in my SJ Witness Statement too. Many thanks for that.

 

Thanks Andy. Email saved in my drafts folder for now.

 

I have been looking into representation for the SJ hearing. I think that I may be entitled to legal Aid from reading up on the internet. Ive found one local firm who accept legal aid. Im going to contact them to see.