Nottsdave/Capquest-Court date soon.

[citizenB]

just adding my support, linked over from dazza's thread

 

SH, I didnt realise you were unwell.. hope you are feeling better soon.

[citizenB]

Dazza's absence is a bit worrying. I too, hope he hasnt given up. However, there could be many reasons.. lets hope that everything is ok with him.

 

SH, I am pleased to hear you have had some good news:D

 

Notts dave, I am not given to wishing my life away, but in this instance, I hope the week flies past

[citizenB]

Hi Guys,

 

Well Im confused as hell now !

 

Yesterday I received a copy of the Allocation Questionnaire forwarded to the court from HL Legal.

 

OK Some details from the questionnaire,

 

Questions

 

A - Settlement, they has asked for a one month stay in a attempt to settle the claim ?

B- Location of Trial- No problem

C - Pre-action Protocols-part one - blank part two - They state they have not exchanged any info with me to help settle the claim (true nothing rec)

 

D Case Management Information -What amount of the claim is in dispute= All of it- Apllications- None - Witnesses ******** Experts None -Track = Small claims.

E Trial or Hearing- Nothing

F Proposed directions- None

G Cost- Nothing

H Other info- Nothing

 

So thats it from the questionnaire, do you think they will be granted a one month stay to try to settle ? and if so why ?

 

Once again Im reliant on your help.

 

Notts

 

This is bizarre, they have asked for a month's stay in order to settle the claim, then go on to say they have exchanged no information in order to facilitate that ?.

 

Perhaps Scabhunter will be able to throw some light on this for you.

[citizenB]

Oops, looks like it could be an either or situation Dave. However, at present it looks as though they havent filed at court. I would NOT however, be inclined to let them know they have made an error.

 

42man's advice is sound, phone the court and check up on them.

[citizenB]

well I rang the court again today to see if the case had been struck out (judge gave 5 days from the 5th March for the claimant to get there AQ in) surprise surprise no AQ has been received but the case now has to be refered back to the judge for action.

 

How long will this drag on !!!!

 

Notts

 

This is so unfair. Did the DJ say the case would be struck out if they didnt file within the extra 5 days ?. It is now the 18th, more than enough time to get themselves sorted.

[citizenB]

Crikey, this is a bit of a muddle isnt it ?.

 

I guess what this now means is that things will be going ahead and that a court date will be sorted out. I am sorry, I dont really know what the procedure is. You have filed all your paperwork havent you ?

 

I really think you need to get in touch with creditcardmug, have you pm'd him. I will ask for a more experienced site member to look in on you.

[citizenB]

SOrry to hear this Dave, very frustrating for you:(

[citizenB]

When you say you have a credit agreement that is 6 pages long, do you mean terms and conditions ?

 

Is there any chance you can scan them in as well, or if you have already, can you point me in the right direction of them

[citizenB]

Hi CitizenB

 

It states its a Credit Agreement and has things like,

Important Financial Information ie Credit Limit -Interest Charges-Words with special meanings - Using your Account - etc etc.

 

I can scan and post but it is 6 pages long ?

 

Notts

 

It sounds very much to me like it is the terms and conditions, Dave. Apart from which, if it doesnt bear your signature there could be a problem for them.

 

Can you identify whether this Credit agreement/Terms and conditions is from the same date as the application form ? What are the default charges are they pre 2006. Before approximately £25.00 + after 2006 £12.00. Is there a date code perhaps somewhere, are the pages linked in anyway.

[citizenB]

I have a few things to catch up on. But I will have a read through your thread later on and see if I can help in anyway.

[citizenB]

Update.

 

Friday received the papers from the court see links below,

 

http://i625.photobucket.com/albums/tt333/nottsdave/img011.jpg

 

http://i625.photobucket.com/albums/tt333/nottsdave/img012.jpg

 

 

The link below is the copy of the agreement they sent me Scabhunter says its rubbish and I tend to agree having looked around at others on this site.

The only other stuff they have sent is a big list of statements, a letter saying they have bought the debt and a letter saying that Sainsbury sold it to them.

There is no termination notice sent but there is a Credit Agreement which is about six pages long, it has my name and address on but is not signed by me

 

 

http://i625.photobucket.com/albums/tt333/nottsdave/scan1421.jpg

 

 

So what do I do now ?:?

 

 

Notts

 

 

I have brought forward the paperwork you received from the court.

 

It looks like CCM has you covered which is good news:D

 

My observations are that the "application/agreement" doesnt have any prescribed terms. The 6 pages of T&Cs couldnt possibly have been on the back of that document.

 

I dont see that you have received a Default notice either from the OC or Capquest. Just a NoA and then the claim form !

 

On the claim form they have said they are claiming s69 interest which they arent entitled to.

 

Capquest now have to pay a £300.00 fee and serve and file copy documents 35 days before the hearing.

 

Meaning they have to send to you and the court.

 

Then you have to serve and file what you need to 21 days before the hearing. This gives you time to see what they have.

 

You will have to prepare a Witness Statement, you are the witness in your own case.

 

I guess you now start collecting all the stuff you are going to rely on in court and copy it for the court and CapQuest. You will need to take any original stuff to the court on the day. I think anything you dont mention in the witness statement, you wont be able to rely on in court on the day.

[citizenB]

I think you should have a defence ready to file on time, just in case the court doesnt do a strike out. I would be inclined to phone the court and find out where they are at.

[citizenB]

cheers Citizen,

 

But surely my defence would be in response to what the claimant files ........wouldnt it ?

 

I will ring the court tomorrow anyway and find out whats going on.

 

Notts

 

 

TBH, I am not sure where you are up to.. can you please do a recap for me.

 

Have you already filed an embarrassed defence and you are now waiting for documents to submit a fully particularised defence ?

[citizenB]

Ummm, bizarre is what I think, Dave. I will alert the site team to the post in question.

 

I would say, they have lost the plot somewhat.

 

However, just to confirm.. this is a Sainsbury's card. Always has been, it didnt start life off with one company and get taken over at any stage ?

[citizenB]

Hi CB

 

No it started life as a Sainsburys CC and died a Sainsburys CC, It was sold to Capquest as a Sainsburys card and was opened as a Sainsbury card.

 

Boy am I confused.

 

Notts

 

 

You n me both.. very odd. Site team are aware, but IMHO, you need do nothing. They have obviously lost the plot.

[citizenB]

Here are some guidance notes to Witness statements that pt2537 has provided. If you click on the link (which is a single post containing the text I have reproduced for you below) then click on the thread title which appears to the right top of that post, you might find Humbleman's WS which will give you a good idea how to do one. DO NOT COPY ANY ONE ELSES WITNESS STATEMENT, they are each individual to a specific case.

 

HTH

 

Guidance Notes on Witness Statements

http://www.consumeractiongroup.co.uk/forum/show-post/post-2167282.html

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:

oWho 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)

oWhat the witness’s connection with the proceedings is

oWhy 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.

[citizenB]

What is the situation with the Default Notice ?. Did they issue one, was it in the prescribed form and valid ie did it give you 14 clear days, etc.

[citizenB]

Then I think you need to include something about that. To be able to ask for the full balance then they have to Default and Terminate the account properly. There is nothing in the CCA 1974 which says they can just have a bad hair day and terminate you.

 

BRB. - about half an hour.. got to look for the regulations for you.

[citizenB]

DEFAULT NOTICE

 

31. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

33. It is denied that any Default notice was received as required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

34. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

 

(1) 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,-

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)to enforce any security.

 

35. I note the opening part of section 88(1), which states

 

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

36. 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.

 

37. The notice fails to include the following statement in the form as shown

 

"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

 

38. Also the notice fails to set out the statement as set out 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]"

 

 

39. The statements referred to in points 37 & 38 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

40. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

41. 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 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 default

 

42. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

43. I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

44. I therefore put the claimant to strict proof that a Default Notice in the prescribed form was ever issued along with proof of service.

The following is the Practice Direction that deals with service by post.

 

You will need to renumber this lot into your statement.

HTH. I have asked the site team to confirm that this Default information is ok to put in your WS.

 

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[citizenB]

Dave, I have alerted the site team.

 

How can they say they cant provide a copy of the DN but CAN confirm that it was posted 1st class. You need to put them to strict proof of this. If the DN was never sent, not in the prescribed form, contained charges, didnt give you the correct amount of time to remedy.. then it is necessary for it to be provided.

 

Did you inform the court at the time they hadnt complied with the court order of 35 days ?

 

If there are no prescribed terms on the application form then that should make it unenforceable. 6 pages of T&cs are unlikely to have been on the back of it. Are there any references to the T&cs on the application form.

 

From when are the T&Cs ?.. current or historic.

 

 

I dont understand the reference to the Rankine case, how does this apply to your asking for copy documents ?

 

I am sure others will be along soon to help and advise properly.

[citizenB]

This is pt2537's guide to Witness statements.. HTH

 

 

Guidance Notes on Witness Statements

http://www.consumeractiongroup.co.uk/forum/show-post/post-2167282.html

 

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.

[citizenB]

Can someone have a look at this and let me know if its ok, it has to be with the court this Friday

 

Any advice greatly received.

 

Cheers

 

 

WITNESS STATEMENT OF xxxxxxxxx

 

 

I, Nottsdave of 123 Dunroamin, Staying Put, Wherever, am the defendant in this case

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.

 

• The facts and matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my own knowledge, they are true to the best of my information and belief. I have stated the source of my information or belief. (You might want to replace this with the section in red above, you are signing the statement of truth at the bottom)
  

Timeline of Events

On xxxxxx.2008 I received the Claim Form in this case issued by xxxxxxx and Collections out of the Northampton County Court.

 

On the xxxxxxxxxxxx 2008 I made a request for documents (from HL Legal) under the CPR 31,14, (Exhibit A) the documents I requested were as follows,

 

The Agreement

 

To date I have not received a copy of the agreement which meets the requirements (PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations) as the document sent to me is clearly a application form, and has none of the prescribed terms required which are,

 

Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

 

Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

The Notice of Assignment

This was received in June 2008

 

The Default Notice

In addition to the alleged credit agreement being irredeemably flawed, it is submitted that the claimant failed to issue a default notice served under s87 (1) Consumer credit act 1974 and so failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). Therefore I am unable to check the validity of the Default Notice.

 

 

On the 6th of December [ WHICH YEAR ] I requested from Capquest Debt Recovery (Exhibit B) a copy of the Credit Agreement. To date I have received no response to this request.

 

 

I therefore believe that the claimant is still in default of my CPR 31.14 request the response has been insufficient, absent Default Notice and an Application Form leading me to request that the claim be struck out.

 

 

 

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

 

 

 

Signed ________________________

 

 

Dated ________________________

 

 

 

 

Dont forget that you will need to put the name of the court, claim number and disputing parties at the top of the Witness statement. If it goes on to more than one page, you should number the pages at the bottom (centered)