NatWest and Shoosmiths

[AndyOrch]

Not a problem Lifesontheup they really are quite devious arnt they but once you know what you are looking for, all becomes quite clear.

Have you recieved a copy of Shoos AQ?

With their Application have you recieved a copy of their WS for SJ?

If you get chance it would be interesting to see the above less your F i Ls personal details of course.

 

Regards

 

Andy

[Lifesontheup]

Below is my father in laws Section I statement

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a full and proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts

ability to deal with the case.

 

The Defendant denies that, at any time, since the variation of the agreement has he failed to pay in accordance with the varied agreement. The Defendant therefore denies that he is in breach of the agreement as alleged or at all.

 

The Defendant avers that the Default Notice relied upon by the Claimant is invalid in that there had been no default as alleged or at all, and the sums of money claimed by the claimant include default charges pursuant to an unfair contract term and consequently are unlawful and by virtue of the Unfair Terms in Consumer Contract Regulations are not binding upon the Defendant.

 

Its is respectfully requested this case be allocated to the Fast Track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

 

Therefore it stands to reason that the documents must be disclosed before this case can progress any further

Below is the draft order

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

(i) Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended

(ii) In relation to the above, strict proof that the claim of XXXX has been defaulted upon

(iii) Copies of statements for National Westminster Bank Home Loan account number XXXXXXX

(iv) Fully documented proof as to how the sums claimed have arisen

 

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

An amended defence sufficiently particularised in response to the documents supplied by the claimant.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

Does it look ok?

 

No they haven't submitted an AQ - which I am also thinking of adding into this as from reading on here they should have indicated it on their AQ not blatantly ignore protocol and steam roller judgement.

Edited July 14, 2009 by Lifesontheup
to remove value

[AndyOrch]

Ok looks fine you need to add both account numbers Loan and current,refer to everything as two and not as NW have you believe one.

 

Copy to the Court signed and have a copy ready for Shoos unsigned and dont send until you recieve their copy.If none recieved keep checking with the Court if they have filed theirs.

 

Regards

Andy

[Lifesontheup]

Will do that and thanks for taking the time to help

[AndyOrch]

Will do that and thanks for taking the time to help

 

Ok give me a nudge if you recieve anything in particular the Claimants Application.

 

Regards

Andy;)

[Lifesontheup]

Checked with CC and Shoosmiths have not put in their AQ. They told me this will go before a DJ now.

 

I don't know whether to wait a few weeks to see what happens with it or respond to the SJ - with a hearing due 18/8, I do have some time.

 

Does anyone know if the result of the AQ can affect the SJ hearing?

 

I had a feeling they wouldn't reply to the AQ as I think they are counting on the SJ.

[bazaar]

Just keep to the courts' timelines, DO NOT give shoos any heads up. If they fail to follow court directives, then thats their problem. Highlight it when you need to , to the judge

[AndyOrch]

 

 

Summary Judgement or other early termination

5.1

 

Part of the court’s duty of active case management is the summary disposal of issues which do not need full investigation and trial (rule 1.4(2)©),

 

5.2

 

The court’s powers to make orders to dispose of issues in that way include:

(a) under rule 3.4, striking out a statement of case, or part of a statement of case, and

 

(b) under Part 24, giving summary judgment where a claimant or a defendant has no reasonable prospect of success.

 

The court may use these powers on an application or on its own initiative. The practice direction ‘Summary Disposal of Claims’ contains further information.

 

5.3

 

(1) A party intending to make such an application should do so before or when filing his allocation questionnaire.

 

(2) Where a party makes an application for such an order before a claim has been allocated to a track the court will not normally allocate the claim before the hearing of the application.

 

(3) Where a party files an allocation questionnaire stating that he intends to make such an application but has not done so, the judge will usually direct that an allocation hearing is listed.

 

(4) The application may be heard at that allocation hearing if the application notice has been issued and served in sufficient time.

 

2.5

Consequences of Failure to File an Allocation Questionnaire

 

(1) If no party files an allocation questionnaire within the time specified by Form N152, the court will order that unless an allocation questionnaire is filed within 7 days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court.

 

(2) Where a party files an allocation questionnaire but another party does not, the file will be referred to a judge for his directions and the court may:

(a) allocate the claim to a track if it considers that it has enough information to do so, or

 

(b) order that an allocation hearing is listed and that all or any parties must attend

 

 

 

Just some food for thought Lifesontheup but I would allow a little more time yet, after all the CC will, they are the Claimant after all

 

Regards

 

Andy

[Lifesontheup]

Thanks bazaar and Andy.

 

It is indeed interesting reading. I am at the point now that I am content that at least we get a hearing in which I will present the statements showing there has been no default on the payment on their POC.

 

Will be back soon, once I have put together the response to the SJ.

[AndyOrch]

Hi Lifes

 

I dont want to see you get this wrong or chase up the wrong path and therefore offer the following to consider.

The stark reality is however, if you are not making normal payments to an account be it P/loan or C/Card, at some point in time, a Court claim will be filed.(As in your Fathers in Laws case the agreement was modified I understand) These Companies as everyone knows, play rough, so why anyone would assume that they will be allowed to continue making nominal payments forever and a day, with the Bank's blessing, when and if they know you own a property is beyond me. More and more people are getting into difficulties with loans and credit cards, so the worse the situation gets, the more aggressive the banks and credit card Companies will become in enforcing debts. RBS/NW are probably savier than most.

Lets see what their response is in the AQ (if any) and then you can refer to the post i have made above.

I trust the above is of help

Regards

Andy

[Lifesontheup]

I understand what you are saying and know this isn't going away.

 

I truly hope I never fall into a similar situation, as I can see the effects it is having on my fil. We've sat down and gone through his finances to see if there is any way he could pay a higher amount, but at this moment in time there is no "room for maneuver".

 

Thanks for taking the time to reply, I really do appreciate it

[Lifesontheup]

Well no sign of a response to the AQ by the solicitors so the Court have now allocated an Allocation Hearing. This is the same date and time as the SJ.

 

I am in the process of preparing witness statements.

[Lifesontheup]

Ok, this is a first stab at the witness statement. I have tried to answer most of the the sols claims.

 

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 deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

3 At trial I shall contend that no default notice for £xxx has been issued under Section 87 of the Consumer Credit Act 1974. The Act specifies the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

4 The Claimant contends that the Defendant has failed to provide documentary evidence in support of his assertion that an agreement was reached with the Claimant whereby the Defendant would pay £xxx.

 

5 At trial I will contend that the Claimant has already admitted that the agreement was varied as their Particulars of Claim is for the sum of the lower payment of £xxx.

 

6 The Claimant contends by means of the County Court Claim form that the sum of £xxx has been defaulted upon.

 

7 At trail I will contend that payments for this amount have continued to be paid. Therefore rendering the County Court Claim invalid.

 

8 The Claimant notes that the Defendant does not fully particularise the assertion that default charges have been added to the claim.

 

9 At trial I will contend that I have made a number of requests for the Claimant to provide strict proof as to how the sums claimed has arisen. The Claimant to this date, has failed to fully particularise the amounts being claimed.

 

10 The Claimant is surprised by the assertion that the sums claimed may include unfair charges given that statements of account were forward to the Defendant under covering letter.

 

11 At trial I will contend that despite a number of requests to provide strict proof of the sums claimed, the Claimant has only provided bank statements for the National Westminster Current Account and has failed to provide bank statements for the National Westminster Bank Home Loan account. In fact the Defendant has never been issued with bank statements for either account until requested. The Defendant is still waiting for the bank statements for the Home Loan account on which the Claimants claim is based.

 

12 The Claimant claims that the Defendant wrote to both the Claimants Solicitors and Claimant making a request for further information erroneously.

 

13 At trial I will contend that the Defendant has only written to the Claimants Solicitor and this is why the Claimant cannot provide a copy of said letter from the Defendant. The erroneous letter referred to by the Claimant was sent as a litigant person trying to ensure that all information was sent in order to fully consider the claim being made.

 

14 The Claimant claims that the Defendant was sent a copy of the loan agreement together with a schedule of arrears.

 

15 At trial I will contend that a typed up Word document showing the loan amount followed by monthly payments does not constitute fully particularised evidence of how the sums referred to on the claim are made up.

 

16 The Claimant claims that the defence of XXXX is not verified by a statement of truth. The Claimant wrote to the Defendant on XXXX and XXXX inviting the Defendant to amend his defence to include a statement of truth.

 

17 At trial I will contend that the first letter of xxxx was not received however the on receipt of the second letter, the Defendant telephoned the Claimants solicitors to explain that a copy was sent to them and to the Court. The Defendant checked with the Court and it has been established that the second page of the defence sent to the Claimants Solicitor was presented as a blank. However the Court confirmed that they were in possession of the page containing the statement of truth. The Defendant then sent a further copy to the Claimants Solicitor.

 

18 The Defendant once again claims that the Default Notice relied upon by the Claimant is invalid.

 

19 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has given full disclosure of material which unequivocally justifies an entitlement to the issue of the claim and the sums of money referred to on that claim, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

20 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.

[AndyOrch]

Hi Lifesontheup

 

Excellent WS couldnt have done better myself;)

 

Regards

 

Andy

[Lifesontheup]

Thanks Andy and everyone who has replied to me

[Lifesontheup]

Found your last couple of replies on Loopyloopys' thread very interesting Andy

[Lifesontheup]

Something I forgot about! The DN and termination they have provided are only dated - not signed. Does anyone know if that means anything?

[AndyOrch]

Probally reconstructed and couldnt find anyone wishing to add their sig to it:D Seriously though as long as the perscribed layout and nature of breach and time allowed to rectify is ok thats all a DJ will be concerned with oh and of course that the figure is true and dosent reflect any ill concieved charges;)

 

 

Regards

 

Andy

 

Andy

[Lifesontheup]

Thanks Andy, I've been searching for ages and couldn't find anything to cover it.