Nationwide County Court claim

[homerj]

Thanks MDAW, your thread and WS will be helpful.

 

Freethemice. inanswer to your questions

yes they did ask for the full balance and return of the card (on all 3 default notices)

The T&C breached was failure to pay £5 or 3% which ever is higher

I'm not sure i understand your point regarding arrears on the statement. i have the statement prior to the 1st default notice and all it shows is the amount due(and i was over my credit limit)

 

Can you give me a link to a thread including termination with default notice please. I have read a lot of threads over the past few months and have not seen this

 

i took yesterday and today pm off work to write WS

[homerj]

A bit of urgent advice please.

 

Had a phone call from Claiments solicitor asking me to agree to another week to simultaneously exchange WS (should be tomorrow). I agreed as it also gives me more time but decided to ring the court to advise.

They said they could not advise

 

Has anyone had this situation????

[citizenB]

Have asked the site team your question.

[homerj]

As the WS were due to br exchanged simultaneously tomorrow i think i need to file a copy with the court along with a letter explaining that i have been asked by the claimant to delay and do not want to predjudice my case by not complying with judges orders. Any thoughts please

 

Below is my witness statement, mainly thanks to Mr Happy, but i'm not sure about the defaul notice section and points 23 & 30. Any comments/help please

 

 

In the XXXXX County Court

Claim number XXXXX

 

 

 

 

 

 

Between

 

 

Nationwide Building Society - Claimant

 

and

 

 

Homerj - Defendant

 

 

 

 

 

WITNESS STATEMENT

 

 

 

1. I,Homerj of X XXXXXX XXXX,XXXX, being the Defendant, am a litigant in person in this case.

 

2. I make this Witness Statement in support of my defence against the Claimants claim against me.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4.I admit applying for a credit cared account with Nationwide Building Society and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which I may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

Background

 

5..In May 2008, I realized I was unable to make the minimum payments requested on the monthly statements received by me from my creditors. This led to me contacting a debt management company, Paypan, in an attempt to resolve my financial problems.

 

6. I called Nationwide and explained about my financial circumstances and that I was unable to make the payments which they were requesting and that Payplan would be sending a financial statement and offer of payment.

 

7. Various letters were received from Nationwide requesting payments

 

 

8.In September I was contacted by KPR Debt Collections to whom I explained that the financial statement and offer sent to Nationwide by Payplan was a true account of my finances and the amount offered was pro-rata to all my creditors. They refused this offer of £55 asking for a monthly payment of £300.00.

 

9. I was then sent a formal demand for payment by Eversheds a company of solicitors, who said they were acting on behalf of Nationwide, I again explained about my financial circumstances and that I was unable to make the payments which they were requesting. I tried unsuccessfully to negotiate with them to get them to accept the pro-rata payments.

 

10. The amount which I could realistically afford to pay per month was calculated by Payplan by subtracting my basic living expenditure from my income and dividing the remainder between all my creditors on a pro-rata basis.

 

Claim

 

11.The Claimant commenced this action on th December 2008 in which the Claimant seeks to enforce payment the balance of £xxxx.

 

12.On th January 2009 I delivered to the Claimant a request made pursuant to the provisions of Civil Procedure Rules. Marked xxx1 a true copy of the letter dated January 2009.

In my letter, I requested

(a) copy of the Agreement referred to in the Particulars of Claim

(b) copy of any default or termination notice

 

13.The Claimant did not respond to my request in the time requested and I filed a defence dated xx January 2008 . The Claimant did not comply with this request until ordered by District Judge xxxxxxx on xx April 2009

 

Default Notice

 

13. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and I put the Claimant to strict proof that said document marked ZZZ1 in the prescribed format was delivered to me. .A default notice is a required by S87(1) of the Act before a creditor can become entitled to take any action in respect of a regulated credit agreement.

 

14. Notwithstanding this point, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document 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).

 

15. 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.

 

16. 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.

 

17.According to the Particulars of claim, it is inferred that a document [ZZZ1] entitled “Default Notice” was served to me on on 13 June 2008. This document purported to be a default notice under s 87(1) of the Act. By S7 of the Interpretation Act 1978, a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post.

 

 

Consumer Credit Agreement

 

18. The Claimant in this application has produced a document ZZZ2 which the Claimant alleges to be the credit card agreement entered into by the parties.

 

19. Section 61 of the Consumer Credit Act 1974 lays down certain conditions which must be complied with if such agreement is to be enforced by the court.

 

20. Firstly, the agreement must be signed by both the creditor and the debtor. Secondly, the agreement must be legible. Thirdly, the agreement must be contain certain prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974. The regulations referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553

 

21. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate document. [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]

 

22. It is denied that the document ZZZ2 contains the terms in the prescribed manner, and therefore the agreement does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

 

23. Additionally the document ZZZ2 is mostly illegible

 

 

 

The courts power of enforcement

 

24 .The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with.

 

25. Case law [Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)] also confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

 

Submission

 

26.These are the documents upon which the Claimant relies for the purpose of satisfying the court that the agreement upon which its case is based is an enforceable agreement.

 

27. I am unable to admit that I am indebted to the claimant and further more I am unable to assess if the contract which the claimant claims to be reliant upon is legally enforceable or is properly executed as required by the Consumer Credit Act 1974. Consequently, since the Claimant’s case is still substantially flawed , I put the claimant to strict proof that the debt is valid and further more legally enforceable under the Consumer Credit Act 1974

 

28. At trial I will assert by reference to the documents and by submissions to the court as to fact and law that the documents relied upon by the Claimant are inadequate for the purpose of demonstrating that at the date of the commencement of this case, the Claimant was entitled to any of the relief sought.

 

29.I submit that

(a) Pursuant to CPR 3.4 (2) the Claimant’s statement of case discloses no reasonable grounds for bringing the claim and/or that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and

(b) Pursuant to CPR 24.2 (a) (i) that claimant has no real prospect of succeeding on the claim or issue.

 

30. In view of the above, I request that the Court makes an Order that the statement of case of the Claimant be struck out and that judgment be entered against the Claimant and that the Claimant do pay the Defendant’s costs.

 

I believe that the contents of this statement are true.

 

 

(Signed)

 

(Dated)

 

 

[freethemice]

You don't seem to have questioned Nationwide as to why full balance was requested in the default notice.

I did and they explained they were relying on breach under 12 (d) [This is 4 (4) on the terms they supplied me]

 

Any amount which takes you over your credit limit and/ or any arrears shown on your monthly statement was to be paid in full immediately

 

According to them any breach of conditions allows them to claim full balance immediately.

 

In your case as no arrears were showing on your statement the and/or part of the condition would mean that all that was due was 3% of the balance shown on your statement prior to the default notice within 25 days of the date of the statement.

I do think it is important that you ask why full balance was requested when you have a statement from x days before the default notice requesting a lower amount within 25 days.

 

A default notice should only show the amount in default. Or the amount needed to remedy a breach of contract. How could they reasonably expect you to get full balance to them within the x days they allowed from the default notice? Surely pointing out the confusion and contradiction between your statement and the default notice would help convince a judge the default notice was indeed defective.

 

The thread that convinced me proving the dodgy dn is key to yours and my case is:

 

A Tale of a Dodgy DN

 

I'm no legal expert but please feel free to pm me so we can swap notes.

[homerj]

thanks FTM we are obviously at the same stage

I agree with what you are saying but would a judge see it the same way. IMHO i think we need to concentrate on the faults which are contrary to rules or acts and which if argued correctly are not open to interpretation and which will either cause the claimants to discontinue or judge to rule in our favour

 

I have been checking the 'particulars of claim' and there are a couple of date inacuracies. This is a document signed as being true. Can anyone

tell if it is worth pointing these out in my witness statement even it one is obviously a typing error?

[homerj]

Letter recieved from claiments solicitors today with a copy of a an application for summary judgement. They rang me on thursday last week asking me to agree to week extension to exchange witness statements because of holidays and then the day after file an application for summary judgement. Are solicitors allowed to mislead? The reason for exdending was obviously a lie.

I could really do with some advice on my next move.

[Docman]

homerj

 

It just shows the tricks many CAGgers have seen from solicitors. Quite often, the SJ route is chosen by the solicitors because you have challenged them by submitting a defence and they know they haven't got the valid documentation. I suppose they take the view that if they can pull the wool over the eyes of a doddery DJ, they can win. If not, they then have to go ahead with a full claim. In short, they have nothing to loose and everything to gain by making a SJ application.

 

You will need to submit a response to the SJ application. Do you feel like posting up the details of the SJ application minus identifers? BTW, did you send them your witness statement?

[homerj]

Hi Docman

 

Details of question 3 "what order are you asking the court to make and why?" on application notice

 

"1 Summary Judgement be awarded to the Claimant pursuant to CPR24

2 That the directions timetable be suspended in the interim.

 

because

 

1. The defendant has no real prospects of successfully defending the claim and claimant knows of no other reason why the disposal of the claim should await trail.

2 Suspension of the directions timetable will avoid unnecessary costs being incurred whilst the claimant's application is determined. persuant to CPR 24.5 (1) if the defendant wishes to rely on written evidence at the hearing, he must file the writen evidence at court and serve a copy upon the claiment's solicitors no later than 7 days before the hearing "

 

i didn't send my them my witness statement because they were to be exchanged simultaneously and they rang me to delay by a week due to the person at nationwide being on "holiday" (not true) and a week later, on the day we were due to simultaneously post WS i recieved the letter with the application for SJ saying they did not intend to suply a WS. Although there is one attached to the application.

 

I have also recieved today details from the court giving 10th August as the hearing date. i presume the response to the SJ application will pretty much be my WS? I

[citizenB]

Just bumping your thread for you.

[homerj]

i need to have written evidence delivered by 3rd August so need to send by Fri this week. Any advice would be gratefull

[freethemice]

You were trying to comply with the overiding objectives by giving the claimant more time to produce their documents therefore I would think particulizing the calls and action taken and asking for a stay while you are able to exchange witness statements seems in order.

The claimants sj application seems to rely on you not having presented a case.

 

1. I am the Defendant in this case and I am a Litigant in Person.

 

2. I make this statement in opposition to the Claimant's claim and subsequent application dated * for summary judgement under CPR 24.2

 

3. The Claimant ignored all requests to provide documentation in support of their claim. This left me at a significant disadvantage and unable to file a fully particularised defence and counterclaim as I was not aware of the full details in the claim to be met.

 

4. As a result of the Claimant's actions I filed a 'holding defence' and N149 allocation questionnaire with additional directions asking for the documentation the Claimant would reply upon.

 

5. It was only after the Order made by * dated * that the Claimant made any effort to provide documentation in support of their claim.

 

6. Subsequent to phone calls on (date) from (name) I agreed to a period of 7 days for the claimant to supply documents that are vital to the defence of this claim. This was made in view of the overiding objectives to enable the court to make a clear and informed decision. As an application for Summary Judgement was made on (date). I can only assume the forementioned 7 days was a tactic to delay the exchange of witness statements.

 

7. In view of the above I would like the court to allow a stay of 14 days for witness statements to be exchanged and for the claimant to supply all document they wish to rely on in court.

 

8. I would also like the claimants claim for Summary Judgement to be struck out as I have not been afforded the opportunity to see all the documents the claimant is relying on in their claim and therefore I am disadvantaged and embarrassed.

 

 

 

Just a suggestion comments welcome from those with more knowledge.

[homerj]

Thanks FTM

 

I like your comments however unfortunatly i have now been sent all the documents i require for a defence, in fact several copies, so i'm not convinced i could get thier claim for a summary judgemnt struck out on those grounds so i've made some alterations below but i feel it needs something else.

 

1. I am the Defendant in this case and I am a Litigant in Person.

 

2. I make this statement in opposition to the Claimant's claim and subsequent application dated * for summary judgement under CPR 24.2

 

3. The Claimant ignored all requests to provide documentation in support of their claim. This left me at a significant disadvantage and unable to file a fully particularised defence and counterclaim as I was not aware of the full details in the claim to be met.

 

4. As a result of the Claimant's actions I filed a 'holding defence' and N149 allocation questionnaire with additional directions asking for the documentation the Claimant would reply upon.

 

5. It was only after the Order made by * dated * that the Claimant made any effort to provide documentation in support of their claim.

 

6. Subsequent a phone call on (date) from (name) I agreed to a period of 7 days for the claimants solicitor to obtain a witness statement from an empoyee of the claimant who was on holiday. This was made in view of the overiding objectives to enable the court to make a clear and informed decision. As an application for Summary Judgement was made on (date). I can only assume the forementioned 7 days was a tactic to delay the exchange of witness statements.

 

7. In view of the above I would like the court to allow a stay of 14 days for witness statements to be exchanged.

 

8. I would also like the claimants claim for Summary Judgement to be struck out due to ???????

 

 

Any advice on how to approach the written evidence.

 

Should i use the above?

Or my witness statement which i was due to exchange simultaneously which if used and the judge denied the summary judgment would give me a good chance of winning?

Or ask for the case to be stuck out due to the claiments non complience of a rule and late compying to court orders (and basically lying to stop the exchange of witness statements)?

[freethemice]

If you now feel able to mount a defence I would look at submitting an amended defence and a skeleton argument to justify continuing the action.

Not sure where this leaves the witness statements so hopefully a moderator can help with that.

It does seem a little strange asking for a summary judgement with no qualifying criterea other than 'your unlikely to succeed'. Think they are relying on you doing nothing and getting a sympathetic judge.

 

As the date looms I would press the report button if I were you so hopefully one of the moderators can help with this.

Otherwise I do like to look at the cases who have actually won and see what they did right.

Edited July 29, 2009 by freethemice

[Mydogsawestie]

Thanks MDAW, your thread and WS will be helpful.

 

 

Hi homerj again as freemice has just mentioned above submitting an amended defence and a skeleton argument do feel free to pop back on my thread again.

 

Having just gone through SJ successfully myself I've got no money IGNM gave me some excellent advice and information to use that you could adapt too. http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-court-papers-help-required.html in regards to yours (page 10 this time) good luck.

[homerj]

Thanks for the reminder of your thread MDAW and congrats on round 1

 

I have amended your amended defence below

 

Homerj amended defence.doc

 

Any thoughts/advice gladly recieved

 

Thanks FTM i have pushed the button

[car2403]

I think you should consider applying for SJ against them?

 

Something like this;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/209161-help-recieved-ccj-restons-3.html#post2315544

 

Or this;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default-9.html#post1361381

Edited July 29, 2009 by car2403

[homerj]

Thanks car2403,

 

something i forgot to mention.

 

With the SJ is a witness statement the key parts of which are

 

"10. The defendent alleges that the particularrs of claim disclose no cause of action which has any reasonable prospects of success and that no evidence has been provided to substantiate the claim" the defence was filed within 28 dys of the original claim at which time i had no CCA or DN which were mentioned in the particulars of claim

 

"14. Contrary to the defendants allegations, a copy of the credit agreement and default notice were exhibited to the particulars of claim. does this mean they are claiming the CCA & DN were with the original claim form?.A further copy of the particulars of claim were sent to the defendand on *** in accordance with the court's direction."

 

do i have enough time for a SJ before the claiments SJ hearing on the 10th Aug?

[freethemice]

They do have a point for summary judgement as you now have most of the information you requested and the holding defense would no longer hold much ground.

You need to get your defense updated asap and highlight what information if any you still need to defend your case. You should also remind the court that you are litiagate in person and state that you feel the other side are using underhand tactics to make you miss deadlines.

Were any documents supplied with the original particulars? If this is a blatant lie then the court needs it highlighting as they can easily check.

 

As for my case Nationwide have missed the deadline for filing AQ's so I am hoping the judge will take action to strike out the claim - fingers crossed.

[homerj]

You need to get your defense updated asap and highlight what information if any you still need to defend your case. You should also remind the court that you are litiagate in person and state that you feel the other side are using underhand tactics to make you miss deadlines.

Were any documents supplied with the original particulars? If this is a blatant lie then the court needs it highlighting as they can easily check.

 

My thoughts exactly. No documents supplied to me with the claim form.

 

fingers crossed for yours

[car2403]

What they have supplied is unenforceable, though, right? (Sorry, not totally up to date with your thread) Why would you amend your Defence if there is no Defence because there can be no claim? Sounds like SJ suits better, IMHO.

 

And - yes, there's time to get it in. In reality, both Applications will be heard together on the same day at the same hearing - what's important is that you give the Court enough time to seal the Application and Serve it on the other party so they have 7 clear days to respond. If you don't, the Court may have to relist the hearing(s). It might be worth you serving your Application on the other side, and letting the Court know in a letter attached to the Application that is what you've done. It might save some time.

[homerj]

Hi car2403,

 

on my way to work, i will post DN, CCA and T & C's tonight if you would like to give me your opinion.(if you have time though the DN is on page 1 and CCA on page 5)

 

Cheers

[freethemice]

Would definately respect cars views over mine but please remember that all they have sent you is an application form not an agreement.

Would also try to get the judge on your side by relying on the dodgy default notice more that the unenforceable contract. Surely you can look the judge in the eye and say by asking for payment of the full balance and return of their card in the default notice issued on xxxdatexxx and only giving you xx days to remedy this Nationwide put me at a distinct disadvantage. Had they requested the amount that was in arrears at that time and given me the required 14 days to pay me uncle/ dad/ friend would have helped me pay this.

Rather than going there and saying I used Nationwides money but want to wriggle out of it because they didn't put x term in x box.

[car2403]

Nope, I'd go with unenforceable agreement first, faulty default/termination notices second. Reason being;

 

*Enforceable agreement + faulty notice = Judge can stay proceedings until a compliant notice is issued, then enforce

 

*Unenforceable agreement + faulty notice = Judge can't enforce the debt, even if they reissue a complaint notice

[homerj]

Thanks for your advice guys

 

Have decided to go for SJ and have a couple of querries

 

1. Question 3 " what order are you asking the court to make and why?" obviously i am making an application for SJ to be awarded pursuant to CPR24 because the claimant has no real prospect of succeeding on the claim. Should i add any other reason like the claimant not filing a copy of CCA & DN with claim form ?

 

2. Question 10 " what information will you be relying on, in support of your application?" does this need to be a witness statement or a response to thier witness statement? - thier witness statement doesn't mention the CCA apart from saying a copy had been served(which it has). Bear in mind my original defence was basically that i was unable to plead due to the CCA & DN not attached to the claim form.

 

Hope the above makes sense