me v restons / **DISCONTINUED**

[Perdita]

Thanks Andy, your time and advice is much appreciated. I will sit on that AQ until after the weekend in case I think of anything else pertinent to the case or else i will file it as per the other info and directions as above witht he bit added about the agreement into the directions.

 

Many thanks

P

[AndyOrch]

No problem Perdita try to leave it as late as poss you may even recieve a copy of the Claimants before hand which is always helpful in completing yours and gives hindsight into which they wish to steer the case.Dont provide them a copy of yours unless they provide you first.

 

I wish you well with your case

 

Regards

 

Andy

[Perdita]

Hi Andy

I have received a notice of claimants application for summary judgement set for 26 october - there is the form, the copy of the agreement (as per previous post) statements etc - do you want to see what they have put on the form ?? What should i be doing now ??

P x

[AndyOrch]

Hi Perdita

 

Ok have they enclosed a Witness Statement in support of their application?

If so you can post a copy up less personal details.You will now have to draft one also in opposition to the application,stating and refuting their points and why their application should be rejected.

You must submit this to the Claimant not less than 7 days before the application hearing pursuant to CPR Part 24.5.1(a)and (b).

 

Regards

 

Andy

[Perdita]

so sorry andy - not been online as ive been ill again - will scan and post up what they have sent in the hope youcan advise me further.

Many thanks

P

[Perdita]

Hi Andy

here is the doc i have received along with a copy of the app, the default notice and there are also some statements - there are late payment charges, over limit charges and payment protection on the account.

http://i605.photobucket.com/albums/tt133/maverick97/Document.jpg

http://i605.photobucket.com/albums/tt133/maverick97/Document2.jpg

http://i605.photobucket.com/albums/tt133/maverick97/Document3.jpg

http://i605.photobucket.com/albums/tt133/maverick97/Document4.jpg

http://i605.photobucket.com/albums/tt133/maverick97/Document5.jpg

http://i605.photobucket.com/albums/tt133/maverick97/Document6.jpg

 

Any help is very much appreciated

 

P x

[Perdita]

anybody ???

 

P

[AndyOrch]

anybody ???

 

P

 

With regards to what Perdita?

I have stated what needs to be done in post 54.

 

Regards

 

Andy

[Perdita]

They have not submitted a witness statement - i posted up the docs received, the box on the app for summary judgement regarding a witness statement is not ticked and it says they are relying on the evidence set down. Do i now just need to submit a witness statement of my own then? If so i will set to work on it and post it up next week.

Many thanks

P

[AndyOrch]

Correct Perdita

 

Draft your Witness Statement and refute their points laid down in the App Notice and also the contention of late /over limit unfair charges and also the inclusion of PPI if considered miss sold.Post up your final dreaft and i will give a once over for submission.You must submit not less than seven days to the hearing.

 

Regards

 

Andy

[Perdita]

This is the witness statement so far - first draft, feel free to pick holes etc

Witness Statement

 

 

1. This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2. I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract. I also challenge the validity of the agreement

3.. On 24th October 2008 I requested a copy of the credit agreement from the claimant – I had no response to this request and I sent another letter on 9th December 2008 requesting the agreement again.

4. On the 6th January 2009 I wrote to the claimant again advising them that as they had not complied to my request for a copy of the alleged agreement then the account was in dispute. No further correspondence was received from the claimant.

5. On 16th May 2009 I received a blurred and illegible copy of an application form and a copy of the default notice – due to the condition of the copy I was unable to verify any details but I do note that nowhere on the signed agreement is there any indication that I requested payment protection insurance and yet this has been charged to my account. If I did indeed request this then the copy of the alleged agreement supplied is clearly not the one I signed or the document is incomplete. I now request to see the complete application form that I allegedly completed together with the Terms and conditions which were effective at the time the agreement was taken out.

6. On 24th May 2009 court papers were received by me and I noticed that the particulars of claim contained collection charges which I believe to be prohibited. I requested that the claimant amend the particulars of claim and remove the charges.

7. On 28th May 2009 in response to the county court claim papers received I sent a request under CPR 31.14 to the claimant for a valid copy of the agreement, the default notice and a full set of statements. This request was not responded to.

8. On 23rd June 2009 I filed a defence to the claim.

9. On 16th September 2009 I received the application for Summary Judgement and some statements of the account were enclosed. These statements also show unlawful charges relating to late payments and over limit fees which I also intend to challenge. These statements could have been supplied upon my request on 28th May 2009 therefore allowing me the time to correspond with the claimant and possibly save the court time.

10. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

 

Date:

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

[AndyOrch]

Excellent Perdita.

Now make sure you send a copy to the Sols and Court not less than 7 days before the hearing.

 

Regards

 

Andy

[Perdita]

Thanks Andy , will get them off recorded delivery after the weekend, 2 weeks before the hearing - thanks for your time again

 

P

[robcag]

Hi Perdita

 

I just had a look at your DN (as finding defective DNs is one of my favorite subjects ).

 

As it stands it is one of the very few legitimate ones from HFC that I have seen on here, but only if it was posted 1st class Royal Mail. I don't suppose you still have the envelope it came in do you, as if it was posted 2nd class it would then be deemed to have taken 4 working days instead of 2 to be served on you, which would then make it well short of the 14 clear days you must be given to comply.

 

Cheers

Rob

[Pipster2797]

*subbing*

[Perdita]

Hi Rob

Unfortunately I dont have the envelope as i didnt understand the neccesity for keeping them at that time ( i do now !) so i suppose they will just sy they posted it first class and i cant prove otherwise

 

P

[robcag]

Hi Rob

Unfortunately I dont have the envelope as i didnt understand the neccesity for keeping them at that time ( i do now !) so i suppose they will just sy they posted it first class and i cant prove otherwise

 

P

 

Hi Perdita

 

As I understand it, it's not for you to prove otherwise, it's up to them to prove that they sent it 1st class.

 

So if you were to put them to strict proof that it was sent to you 1st class it could well be unlikely they could do so.

 

That might well be another (very strong) string to your bow!

 

Cheers

Rob

[Perdita]

should i add it in to the witness statement or save it for later ??

 

P

[robcag]

should i add it in to the witness statement or save it for later ??

 

P

 

Just my opinion (and I'm no expert), but I'd be inclined to introduce it as early as possible to make sure it's not ruled inadmissable by leaving it until the last minute.

 

In your WS you would need to deny that such a DN was properly served upon you as required by ss.87-88 and put them to strict proof thereof.

 

It might also be a good idea to request the relevant info (via a CPR request?) from the enemy if you are going to put them to strict proof of service by 1st class post.

 

i.e. ask them for proof (in the form of proof of posting) that a DN was served on you in accordance with ss.87 of the CCA1974, and that it complied with the requirments set out in s.88 and the associated regulations.

 

As I say, just my opinion.

 

Cheers

Rob

[AndyOrch]

Not wishing to pour scorn on Robs point ,which is a valid one,but below is what happened to another poster who tried this tact and lost!!!

 

 

"oh one thing i think the site may wish to take on board was the fact that i quoted the service of docs that ive seen relied on so often here...judge said that a ruling in 1985 had undoubtedly been superceded and took i think, s.176 of the cca and s6 of the CPR to show that first class service is deemed as next day...."

 

"indeed the barrister said that it mattered not if the DN had even arrived at my address!!!! all that was reqd was them to have sent it, which 'would have been' first class and the DN 'would have been' compliant to statute and under CPR6.26 that meant next day delivery of a fully compliant DN."

 

 

Food for thought and something I have always regarded as a lame argument.

 

 

Regards

 

Andy

[robcag]

Hi Andy

 

Not wishing to pour scorn on Robs point ,which is a valid one,but below is what happened to another poster who tried this tact and lost!!!

 

 

"oh one thing i think the site may wish to take on board was the fact that i quoted the service of docs that ive seen relied on so often here...judge said that a ruling in 1985 had undoubtedly been superceded and took i think, s.176 of the cca and s6 of the CPR to show that first class service is deemed as next day...." Perhaps the author did not present his case very well, or perhaps reported what was said in court inaccurately, because 1st class post is not deemed as next day.

 

"indeed the barrister said that it mattered not if the DN had even arrived at my address!!!! all that was reqd was them to have sent it, which 'would have been' first class and the DN 'would have been' compliant to statute and under CPR6.26 that meant next day delivery of a fully compliant DN." Again, completely wrong (and the poster seems to be spouting nonsense, especially regarding the implication of the Creditor not having to actually prove the DN was sent with sufficient time for the Debtor to remedy), as between them CPR 6.2 and 6.26 clearly define which days count as working days, how many working days are deemed to be allowed for various postal classes etc.

 

 

Food for thought and something I have always regarded as a lame argument. Food for thought maybe, but incorrect and appealable IMHO

 

 

Regards

 

Andy

 

I would agree with your regard of this as a lame argument, as it appears to be completely wrong!

 

Do you have a link to the post where it was taken from?

 

Cheers

Rob

[AndyOrch]

Hi Andy

 

 

 

I would agree with your regard of this as a lame argument, as it appears to be completely wrong!

 

Do you have a link to the post where it was taken from?

 

Cheers

Rob

 

 

Court Claim for O/draft from Nthmtn (CCBC)

 

 

Andy

[robcag]

Hi Andy

 

Thanks for the link, but I've not got time to look right through the thead right now (I''l try and find time later ), although I see it was started by r&b who I have great respect for.

 

I also note the thread is with regard to an overdraft not a credit card as this thread is, so the requirements regarding the DN may well be different.

 

However, that would not change the fact that if the Judge said what was quoted regarding CPR 6.2 and days deemed for service, then that was clearly incorrect.

 

Cheers

Rob

[AndyOrch]

Fully agree Rob as you aware my plight with regards to O/D and DNs continues on Cag and if you do get chance have a read, as this is what the posters are currently having to deal with in court claims,R&B is currently arranging an appeal on that decision.

 

Regards

 

Andy

[robcag]

Fully agree Rob as you aware my plight with regards to O/D and DNs continues on Cag and if you do get chance have a read, as this is what the posters are currently having to deal with in court claims,R&B is currently arranging an appeal on that decision.

 

Regards

 

Andy

 

Hi Andy

 

I'll try and find time to read the thread (I've visited some of r&bs threads already).

 

The trouble is my head is being overloaded a bit ATM and I'm finding it a bit hard to take everything in!

 

Cheers

Rob