Nationwide/eversheds taking court action - CLAIM DISMISSED :)

[jimarich]

today recieved 2 letters from eversheds with 2 consent orders to sign ,one if we have settled for a certain amount and one for me to agree to there proposed directions.

what do i do with these?

[jimarich]

today recieved 2 letters from eversheds with 2 consent orders to sign ,one if we have settled for a certain amount and one for me to agree to there proposed directions.

what do i do with these?

[jimarich]

need urgent advice on this matter, new defence has to be in by the 10th nov 2010 plus new allocation questionaire by the 12th

[Docman]

Hi jimarich

 

What's been happening in the last 18 months or so? If you have to lodge an Amended Defence, what are the Amended Particulars of Claim from Eversheds? Also, the AQ'a are normally isssued after the defence has been lodged, so I don't see how you can have one to be returned already?

 

Can you post up or type up the Amended POCs?

[AndyOrch]

AQs can be issued throughout the proceedings once twice thrice Doc, subject to events ie SJ Application failure, documents disclosed/amended defence as above.

 

Regards

 

Andy

[jimarich]

sorry guys i have really just stuck my head in the sand and wished it would go away

here what i have recieved

eversheds-7th july 2010-reconstituted agreemnt + new default notice

court-10th september 2010-notice of allocation to fast track-ordered that standard disclosure by 21/09/10,also to file a pre trial check list by 12/11/10 and that the trial to be listed 16/03/11

court-26th september 2010-notice of hearing for 22 october 2010+application notice from eversheds for permission to amend paticulars of claim

eversheds-04/10/2010-list of documents for standard disclosure

eversheds- 27/10/2010-amended particulars of claim

+ a copy of latest terms of the credit agreement+ a copy of the original credit card agreement with terms and conditions that applied at the time

court-02/10/2010-general form of judgement-it is ordered that:

1.the claimant be granted permission to amend the particulars of claim in the form attached to the claimants application dated 18th august 2010

2.the amended particulars of claim to be filed and served within 14 days of the order being made

3.the defendant to file a defence to the amended particulars of claim by 4.00pm on 10 th november 2010 and in default the claimant be entitled to apply for judgement

4.fresh allocation questionaire to be filed following the filing of a defence.

hope this helps you to help me

[Docman]

Yes, you have left it a bit late if you haven't sent in a defence yet. However, if you can get one into court in the next day or so (ie by Friday) I doubt the court will have actioned anything. Most courts have a few days backlog of post.

 

Your amended defence needs to deal with the points raised in the amended Particulars of Claim. Can you post these up after taking out any personal identifiers. Can you post up the 'original agreement' and the terms & conditions applicable at the time of signing? Have you actually signed the document that has now been produced by Eversheds?

 

Whatever you do, don't leave it too long. The problem with sticking ones head in the sand is that your backside is exposed!!

[jimarich]

hi docman here goes

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hope this helps

[jimarich]

here are the amended particulars of claim:

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http://s388.photobucket.com/albums/oo326/jimarich/?action=view&current=SNV31778.jpg

[Docman]

jim

 

I'll look at these later today and hopefully be able to give you a few pointers for a defence.

 

Doc

[Docman]

jimarich

 

What do you think of the following? Remember, you need to chnage the words in ref.

 

IN THE WHEREVER COUNTY COURT CLAIM NUMBER 9XX99999

BETWEEN

NATIONWIDE BUILDING SOCIETY

Claimant

And

JIMARICH

Defendant

………………………………………………..

AMENDED DEFENCE

………………………………………………..

1. I, JIMARICH, of [YOUR DDRESS], am the Defendant in this action and make the following statement as my amended defence to the claim made by the Nationwide Building Society

2. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimant’s Amended Particulars of Claim and puts the Claimant to strict proof thereof.

Credit agreement

3. After consideration of the documents supplied by the Claimant’s solicitors on 27 October 2010, the Defendant denies the allegations made in the claimants’ Amended Particulars of Claim and accordingly places the Claimant to strict proof that the Defendant is indebted to them thereof.

4. The Defendant admits signing a document (a copy of which has now been provided by the solicitors for the Nationwide Building Society) headed ‘The Nationwide Credit Card Simple to Apply - Guaranteed’. [The Application]. It is not admitted that the Defendant signed a credit agreement with the Nationwide Building Society.

5. It is admitted that, in the sense that the Defendant applied for and was given a credit card that there was an agreement between the Defendant and the Nationwide Building Society. The Defendant does not admit that such agreement was reduced to writing. The precise terms and date of any such agreement are not admitted. The Claimant is put to strict proof as to the date and terms of such agreement and is put to strict proof that a written agreement is in existence.

6. If there was such an agreement, it would be a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act).

7. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These prescribed terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are

(a) A term stating the credit limit or the manner in which it will be determined or that there is no credit limit,

(b) A term stating the rate of any interest on the credit to be provided under the agreement and

© 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-

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

8. Any such regulated agreement must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

9. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order.[Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) ].

10. It is submitted the Application supplied is not compliant with the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. It is denied that ‘The Application’ is enforceable within the terms of the Act in that the document does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limit.

11. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 require that the lettering in every copy of an executed agreement be easily legible.

12. The solicitors for the Nationwide Building Society also supplied a ‘reconstituted’ copy of the alleged credit agreement with their letter of 27 October 2010. This document is headed with the following comment:

“THE FOLLOWING IS A RECONSTITUTED COPY OF THE ORIGINAL EXECUTED CREDIT AGREEMENT BETWEEN YOU AND THE NATIONWIDE BUILDING SOCIETY. WHILE THE FORMAT AND STYLE OF THIS DOCUMENT DIFFERS FROM THE AGREEMENT YOU SIGNED, IT IS AN HONEST AND ACCURATE RECORD OF TE ORIGINAL AGREEMENT TERMS OF YOUR CREDIT AGREEMENT.”

13. The document then runs to several pages of terms and conditions. It is self evident that the several pages are not contained within the signed Application and have been created by the Claimant solely for the purpose of bolstering their claim.

14. In the event that the Court determines that there is an agreement in existence the Defendant seeks a declaration pursuant to S142 (1)(b) Consumer Credit Act 1974 that, in accordance with SS127 (3) and 61(1) that the aforesaid agreement is unenforceable

Default Notice

15. According to paragraph 4 of the Amended Particulars of Claim a Default Notice was served upon the defendant on 7 July 2010. The defendant denies being served with any such Default Notice and puts the Claimant to strict proof thereof that such a Default Notice was served.

16. A default notice is a required by S 87(1) of the Act before a creditor can become entitled to take any action in respect of a regulated credit agreement.

17. Furthermore s 88(1) of the Act requires that a default notice must be in the prescribed form. The prescribed format for a default notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

18. By Regulation 2(2) of these regulations, any Default Notice must include both a description of the agreement sufficient to identify it and the name and a postal address of the creditor or owner.

19. By S88 (1) © of the Act, the date before which any breach can be remedied or compensation paid, must be stated in the Default Notice. By S 88 (2) of the Act, as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006, the specified date must not be less than 14 days after the date of service of the default notice. The 14 day period was also required by paragraph 3© of Schedule 2 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

20. By case law, the 14 days in the section means 14 ‘clear days’, excluding the day on which the notice was served and the day on which the Claimant proposed to take the steps specified in the notice.

Interest

21. In any event and pursuant to the County Courts (Interest on Judgment Debts) Order 1991 the claim for interest pursuant to Section 69 of The County Courts Act 1984 is denied as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No.1184 (L.12) section 2 (3) as the name of the order implies, is applicable only to judgment debts and so has no application to claims

AND the Defendant

22. In the event that the Court determines that there is an agreement in existence the Defendant seeks a declaration pursuant to S142 (1)(b) Consumer Credit Act 1974 that, in accordance with SS127 (3) and 61(1) that the aforesaid agreement is unenforceable

23. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

 

 

Statement of Truth

I, jimarich, believe the above statement to be true and factual.

Signed

 

 

Date xx November 2010

[jimarich]

thx docman looks good to me, as this had to be in yesterday,how should i get it to court i.e deliver it personally or post it + also i have got to fill out a listing questionaire-pre trial checklist(form N170) thats got to be in tomorrow any pointers, first time ive done one

many thx jim

[jimarich]

hi guys, anyone out there who can help me with my pre-trial checklist(form N170), and many thx to docman for helping me with my defence..

[jimarich]

Hi docman/fellow forum posters, i am due in court on friday 18th march 2011, nationwide inhouse solictors who have taken over from eversheds are asking for witness statements and also i need to do a court bundle i believe for the hearing on that day, please anyone can help

jimarich

[Docman]

J,

 

The original allocation setting out the dates for various items (such as the pre-trial check list), normally states the date by which witness statements should be exchanged by. That date should have been a few weeks ago before the pre-trial check list.

 

What have NW's solcitors actually asked you for?

[AndyOrch]

Bundles of documents for hearings or trial

3.1

Unless the court orders otherwise, the claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.

3.2

Unless the court orders otherwise, the trial bundle should include a copy of:

(1) the claim form and all statements of case,

(2) a case summary and/or chronology where appropriate,

(3) requests for further information and responses to the requests,

(4) all witness statements to be relied on as evidence,

(5) any witness summaries,

(6) any notices of intention to rely on hearsay evidence under rule 32.2,

(7) any notices of intention to rely on evidence (such as a plan, photograph etc.) under rule 33.6 which is not –

(a) contained in a witness statement, affidavit or experts report,

(b) being given orally at trial,

© hearsay evidence under rule 33.2,

(

any medical reports and responses to them,

(9) any experts’ reports and responses to them,

(10) any order giving directions as to the conduct of the trial, and

(11) any other necessary documents.

3.3

The originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial.

3.4

The preparation and production of the trial bundle, even where it is delegated to another person, is the responsibility of the legal representative5 who has conduct of the claim on behalf of the claimant.

3.5

The trial bundle should be paginated (continuously) throughout, and indexed with a description of each document and the page number. Where the total number of pages is more than 100, numbered dividers should be placed at intervals between groups of documents.

3.6

The bundle should normally be contained in a ring binder or lever arch file. Where more than one bundle is supplied, they should be clearly distinguishable, for example, by different colours or letters. If there are numerous bundles, a core bundle should be prepared containing the core documents essential to the proceedings, with references to the supplementary documents in the other bundles.

3.7

For convenience, experts’ reports may be contained in a separate bundle and cross referenced in the main bundle.

3.8

If a document to be included in the trial bundle is illegible, a typed copy should be included in the bundle next to it, suitably cross-referenced.

3.9

The contents of the trial bundle should be agreed where possible. The parties should also agree where possible:

(1) that the documents contained in the bundle are authentic even if not disclosed under Part 31, and

(2) that documents in the bundle may be treated as evidence of the facts stated in them even if a notice under the Civil Evidence Act 1995 has not been served.

Where it is not possible to agree the contents of the bundle, a summary of the points on which the parties are unable to agree should be included.

3.10

The party filing the trial bundle should supply identical bundles to all the parties to the proceedings and for the use of the witnesses.

 

Regards

 

Andy

[jimarich]

thanks guys for replying will post what they have sent me, i have put wrong date for hearing it is wednesday 16th march 2011.

[jimarich]

Here

Edited March 11, 2011 by jimarich

[jimarich]

Please ignore post directly above, next try here:

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please help if you can guys..

[jimarich]

Any help available?

[Docman]

Quite a lot of documents to read, J. I'll get back to you shortly.

 

Doc

[Docman]

J

 

I don't see anything in the witness statements other than a lot of legal woffle to hide the fact that the Nationwide doesn't have a credit agreement that complies with the Act and that they didn't issue a valid default notice before starting these proceedings.

 

Just go along to the court and present your defence without any woffle.

 

Doc

[toomanycalls]

The bottom of page 36 they are almost stating defat on the DN and claiming arrears to date however the arrears due are only to the date of the DN as per Woodchester and no DN prevents a right of action anyway.

[Docman]

Hi jimarich

 

I've had a more detailed look at the docs that nationwide have sent you and I still think they haven't a case. It all depends on whether they send some green local soliciotr or decide to splash out and send a barrister - and of course the outcome of the judge lottery.

 

if your nervous (and I would be) all I can suggest is that you write out what you want to say about your case and then read it out to the judge when he asks for your side of things. I might say something like the following but you have to be sure of your words.

 

Sir,

There are two points in dispute between myself and the Claimant.

The first is whether the application form is a valid agreement that meets the requirements of the Consumer Credit Act 1974. The second point in dispute is in relation to the Default Notice.

If I may, I would like to deal with the agreement first.

It is common ground that in order to be valid, a credit agreement must contain certain ‘Prescribed Terms’ relating to the credit limit, interest and repayments as set out in both the Amended Defence and in the witness statement of the claimant’ solicitor, Elspeth Lowe. The issue is whether the evidence produced by the claimant contains these prescribed terms.

The claimant is only able to produce what Ms Lowe calls the ‘signature’ page of the Agreement. The document is headed ‘The Nationwide Credit Card Simple to Apply – Guaranteed’. [iF HE HASN’T GOT ONE, HAND A COPY TO THE JUDGE AT THIS POINT.]

It is not the signature page of an agreement but simply an application form.

None of the prescribed terms are contained in this document as required by case law. The Court of Appeal agreed in the case of Wilson and Hunstanger that [HAND A COPY OF THE CASE TO THE JUDGE OPEN AT THE RELEVANT QUOTE AND THEN READ …]

…as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement.

Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself:

they cannot be orally agreed;

they cannot be found in another document;

they cannot be implied;

and above all they cannot be in the slightest mis-stated.

As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement.”

The claimant admits that they have ‘reconstituted’ an Agreement and rely on the case of Carey and HSBC. This is a misconceived interpretation of the Carey case which dealt with issues relating to when a cardholder asks a lender for a copy of the credit agreement under the provisions of Ss77 or 78 of the Act.

The Carey case did NOT deal with issues where a claimant has to prove the existence of a document that the claimant relies upon.

No where in the judgment does His Honour Judge Waksman say, that as a High Court judge, he is overruling the Court of Appeal. No where does the judge claim to re-write sections 61 and 127(3) of the Consumer Credit Act requiring the agreement to be signed by both parties.

[IF YOU ARE CONFIDENT AT THIS POINT AND UP FOR SOME THEATRICS, PASS A COPY OF THE CAREY CASE TO THE CLAIMANT SOLICITOR AND ASK HIM TO SHOW THE COURT WHERE WAKSMAN SUPPOSEDLY OVERRULED THE COURT OF APPEAL. HE DIDN’T OF COURSE.]

In his witness statement, Daniel King, states at paragraph 6 that a application pack would have been sent to me which contained

“an application form (with terms and conditions printed on the reverse), a term and conditions booklet (“Terms Booklet”), a prepaid business reply envelope and a user guide/information booklet.”

The Terms Booklet cannot form part of the credit agreement according to the Court of Appeal but I accept that if the terms and conditions were printed on the reverse of the application form, the form would be a signed document that contained the prescribed terms.

As far as I recall, there was nothing printed on the reverse of the application form.

The form itself makes no reference to the terms and conditions appearing on the reverse of the form. Further Ms Lowe does not make such a claim. Instead she has produced a separate reconstituted agreement but offers no explanation of how the [START TURNING OVER THE PAGES OF THE RECONSTITUED AGREEMENT]

…ONE, TWO, THREE, FOUR, FIVE, SIX, SEVEN

pages could fit on the reverse and still be legible.

The fact is that the document produced by the claimant is what it plainly is -an application form NOT a credit agreement. Since it does not contain any of the prescribed terms, I ask that the Court find it is unenforceable and that as a consequence of section 127(3) of the Act, the Court cannot make any enforcement order.

The second point of dispute is the Default Notice.

It is accepted that a Default Notice was issued by the claimant on 7 July 2010.

It is not accepted that, as the claimant contends, that this was valid simply because the court has allowed an Amended Particulars of Claim to be issued. To do otherwise would contradict the Act.

The requirement of section 87 of the Act is that a Default Notice is issued BEFORE the claimant can take the steps outlined in the section.

The section does not state the Default Notice can be issued AFTER action or at A DATE IN THE FUTURE or more particularly WHEN THE CLAIMANTS SOLICITOR HAS REALISED THERE IS A FATAL ERROR IN THE PARTICULARS OF CLAIM.

The claimant has admitted in the Amended Particulars of Claim that the Default Notice was issued after they had terminated and so therefore they are not entitled to bring the claim in the first place.

Any comments from anyone else as I am sure the OP must wonder if any else is out there!

[jimarich]

Judge dismissed the case due to:

 

The requirement of section 87 of the Act is that a Default Notice is issued BEFORE the claimant can take the steps outlined in the section.

The section does not state the Default Notice can be issued AFTER action or at A DATE IN THE FUTURE or more particularly WHEN THE CLAIMANTS SOLICITOR HAS REALISED THERE IS A FATAL ERROR IN THE PARTICULARS OF CLAIM.

The claimant has admitted in the Amended Particulars of Claim that the Default Notice was issued after they had terminated and so therefore they are not entitled to bring the claim in the first place.

 

Nationwide solictor told me that they would be putting in a new claim asap..

 

Round One to us.