Help with Final Defence Please

[ekim777]

Thank you, I am very grateful, i'll do my witness statement and skeletal points and post them for your scrutiny, I think I need to ask the judge to order them to give me my payments back and order them to remove the default also would I ask for costs? They want £2500 if succesful

I am babysitting my granson this evening so won't be able to respond until tomorrow evening.

[ekim777]

Would somebody be kind enough to look over this Witness Statement please?

 

On behalf of: Defendant

Witness: Ekim777

Number (1st)

Exhibits: 1, 2, 3, 4

Date: July 2009

IN THE xxxxxxx COUNTY COURT

Claim No: xxxxx

 

BETWEEN

Arrow Global LLC Claimant

And

 

Ekim777 Defendant

WITNESS STATEMENT OF Ekim777

 

I, Ekim777 will state as follows:

 

1. I am in receipt of Pension and am also full time carer for my disabled wife and have no other employment. As the defendant in these proceedings .I make this witness statement in opposition to the claimant's application for summary judgment.

 

 

2. 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.

 

 

3. There is now produced and shown to me a bundle of documents marked Exhibit 1. The Exhibit 1 contains a copy of the intended action MBNA will take in relation to my account 1234-5678, this is the correct and only account number I have with MBNA, this number is clearly shown in my statements and correspondence with MBNA over the period of the agreement.

 

 

4. There is now produced and shown to me a bundle of documents marked Exhibit 2. The Exhibit 2 contains copies of the Assignment Notice and Default Notice and that the claimant sent to me. It is averred that all of these documents are fatally flawed, in that they do not contain reference to the correct account number which I held with MBNA, they do in fact quote an account number 8765-4321 that, I have no knowledge of now, or before these proceedings which have been brought by the Claimant. As the Assignment Notice, Default Notice and clearly shows a different account number I put it to strict proof that the Claimant has any legal entitlement to the amount claimed and any subsequent recourse to legal action.

 

 

 

 

 

 

 

5. There is now produced and shown to me a bundle of documents marked Exhibit 3. The Exhibit 3 contains copies of the section 87, 88 and 89 Consumer Credit Act, Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561) and Regulation 2 of Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557)

 

6. The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. The applicant has failed to supply any evidence which supports that the claim should be disposed of without trial. The respondent would seek to draw to the courts attention the following matters

 

7. The applicant / claimant failed to supply the respondent/ defendant any documents which the applicant mentioned in their particulars of claim and which were central to the applicant’s case. The respondent asked for the documents, which were pleaded in the claim on xx December 2008, but the applicant failed until xx March 2009 to supply these documents. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence

 

8. The applicant has now disclosed a copy of the Agreement (exhibit 4), which its claim is based upon, from the brief time that I have had to digest this information I wish to raise an issue, which I would expect to expand upon at trial.

 

The Agreement notice is materially defective, Further to my request for a copy of the signed Consumer Credit Agreement I was supplied with a document that was not legible and therefore does not comply with the following regulations:-

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

9. The consumer credit act 1974 s87 & 88 (Exhibits 3) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states

 

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

 

 

 

 

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

10. At schedule 2 Para 3 of the regulations it states the following

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.

 

11. Clearly the fact that the default notice does not comply with the requirements as underlined in Para 8 above.

 

12. This is not a de minimus issue and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, in this judgment Kennedy LJ states inter alia:

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

 

 

 

 

13. Therefore, it would be the respondents position that the applicant / claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective

 

14. In addition, the document, which has been supplied, fails in its entirety to comply with the requirements of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) (Exhibit MSL 3). Regulation 2 of these regulations states that

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

15. I would point out that the Claimant is seeking an order to enforce the agreement therefore the claimant is required to abide by these requirements and produce a copy of the agreement which is in an easily legible form as required by regulation 2 as set out above

 

16. In addition to the points raised I would ask for the court to allow me to amend my original defence as at the time I submitted the defence I did not have in my possession any of the documents which the claimant has now disclosed, despite my requests for further information and given that I am a litigant in person there are a number of other issues which have now come to light in view of the claimants disclosure and therefore respectfully request that I be given the opportunity to defend this action. I make this request with the overriding objective in mind as set out with CPR 1

 

17. I therefore request that the court do dismiss the applicant's application for summary judgment.

 

 

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

 

 

Signed ________________________

Dated ________________________

Edited June 29, 2009 by ekim777

[ekim777]

Can anyone help? just need the it checking so that it is up to speed, Thanks

[Docman]

Hi ekim

 

I've a quick scan of the defence. I think there are a couple of pointers I would suggest but I would like to take a longer look in the morning. When do you have to file the defence?

[ekim777]

Hi Docman it needs to be in the post by Monday next week

[Docman]

Hi ekim

I've had a closer look at the papers. It seems that rather than respond to your original defence and then wait for the DJ to issue directions, MC have tried to short circuit everything by the SJ application. Your aim should be to show that at the very least you do have an arguable case to go to trial. You will need to file a witness statement responding to MC witness statement and send a copy to MC. You should also prepare a skeleton argument to send to the court, as IGNM set out in his earlier post.

There are 3 documents you should contest. (1) The credit agreement, (2) the default notice and (3) the Notice of Assignment. Nicklea set out a good draft amended defence above which deals with the DN and NOA. Nicklea's draft needs to be amended to your case and in addition deal with the credit agreement. I don't see these points all covered in your witness statement, so I suggest you don't use it for the moment.

I'm busy at work right now but I'll try to draft a document for you to look at in the next couple of days. Can you deliver the witness statement to the court on Monday or is that when you will post it?

[ekim777]

Hi Docman, I can deliver the court ones but need to post the other copy to the

Claiment, so they have it 7 days before the hearing.

[nicklea]

The reason that I made no reference to the agreement is that the prescribed terms are on the document that they will claim is the back of the aigned agreement.

 

I know from experience that if you go in and spend a lot of time arguing over a point that a judge does not agree with then it can distract from other stronger points that you have got. In this case the dn and the noa.

[ekim777]

I think the following is definately worth a mention:

 

 

(the copt of the termination notice attached as an exhibit in their witness stetement, does show the correct account number, but is not a true copy the original which I have)

 

 

 

Additionally I assert that the Termination Notice provided with the claimants witness statement is not a true copy of the Termination notice originally sent to me on the xx July 2008, the Termination Notice provided with the claimants witness statement, it has no letter head, shows a correct Account Number, incorrect date format, and the amount claimed is different. These matters I would also like to expand upon in court.

Edited July 2, 2009 by ekim777

[Docman]

Hi ekim

 

When i had a good look at this again, i think the excellent defence from IGNM is perfect for your case. I've made a couple of slight amendements to cover you and attach a suggested draft. I understand that you need to file a copy with the court and also serve a copy on the claimant. You should also send the court a 'Certificate of Service' confirming that you have served the witness statement. The Certificate is on the Court Service website.

 

I think you should also send a separate skeleton argument of your case. At this stage, I don't think it has to be served but I may be wrong. Nicklea has also done a great draft WS but IMO a lot of his draft should go into your skeleton argument. Remember, for a SJ application all you should need to do is show to the judge that the case should have a full hearing because you do have a defence.

 

IGNM's skeleton argument is also an excellent one to start with for you case. What do you think?

 

BTW, is Arrow claiming that the terms & conditions (Exhibit 2) are a copy of what was sent to you in 1996? IMO they are the current T&Cs (a) because the charges section seems to have taken account of the OFT ruling in 2006. Also there is the slight problem that the T&Cs say you can refer any complaint to FOS - the problem is that FOS only started in 2001. lots of brown stuff on carpet I think!

Ekim WS.doc

[ekim777]

Hi Docman many thanks, i'll have a look straight away.

[ekim777]

Sorry posted the wrong doc

Edited July 3, 2009 by ekim777

[ekim777]

Well, I have submitted the Witness Statement and sent it off, I also prepared the skeletal argument and my amended defence, do I take these to the Court and hand a copy to the claiments and a copy to the judge?

 

Ekim

[ekim777]

Any one help pse?

 

Well, I have submitted the Witness Statement and sent it off, I also prepared the skeletal argument and my amended defence, do I take these to the Court and hand a copy to the claiments and a copy to the judge?

[I've got no money]

You need to serve copies of the skeleton and draft amended defence on the other side and the court

 

When is the hearing?

[ekim777]

On the 14 July 2009, am I too late?

[Docman]

ekim

 

Since this is an application for a Part 24 Summary Judgment against you, you have to file a copy of your witness statement WITH any evidence at the court AND serve the other side SEVEN days before the hearing. You will need to send the witness statement by recorded delivery today unless you can fax a copy.

 

I'm not sure about filig and serving the skeleton and your amended defence. They are normally needed for a full trial, not an SJ appication. Others may be able to help more on this point. Persoanlly, I would keep both the skeleton and amended defence with me and use the skeleton as a draft speech before the judge.

[I've got no money]

ekim

 

Since this is an application for a Part 24 Summary Judgment against you, you have to file a copy of your witness statement WITH any evidence at the court AND serve the other side SEVEN days before the hearing. You will need to send the witness statement by recorded delivery today unless you can fax a copy.

 

I'm not sure about filig and serving the skeleton and your amended defence. They are normally needed for a full trial, not an SJ appication. Others may be able to help more on this point. Persoanlly, I would keep both the skeleton and amended defence with me and use the skeleton as a draft speech before the judge.

 

I have always used a skeleton and amended defence as part of my response to a summary judgment application.

 

The 7 day rule applies to evidence so I'd agree that the WS needs to go to court and the other side ASAP - as far as the skeleton and draft amended defence I'd send them off now to the court and the other side now with the WS - the 7 day rule does not apply to either the skeleton or the draft amended defence so you could serve them later

[ekim777]

Well tomorrow, I will be in court! I have prepared everything and am now reading and re-reading. Now I am totally familiar with my Witness Statement, Amended Defence and Skeletel Arguments.

I feel a lot better it has also helped me to see the case more clearly, the long and short of it is that the Assignment Notice shows an account I never had, subsequently the DN and the Termination also show the same wrong account number.

 

Any last minute advice please? (I don't know if they will have any representative there or not), my first question will be what is my MBNA account number? Should raise a few eyebrows for the reply and my response!

 

Thanks to everyone who helped me get this far, I was dead in the water at first.

 

I'll report back tomorrow evening on how it went.

 

Ekim777

[Mydogsawestie]

Hi Ekim777 how did you go today, I had my day in court yesterday & I was a nervous wreck although had a v nice judge who did dismiss the summary judgement application . Will dread the next stage but have just posted up now how my day went http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-court-papers-help-required.html hope you had success aswell as IGNM helped me too.

[ekim777]

Hi Sorry for the long delay in the reply, Grandkids, school hols etc

 

My day in court was a bit of a let down really, i'd spent hours and hours getting everything right for my big day..........

 

I arrived at the court 30 mins early and noticed a name next to my court entry, so suspected they had a legal rep, and shortly after a young chap introduced himself saying that they had sent me the wrong termination notice and were going to submit another one! Also the differing amounts did not mean much as there was only a few hundred quid difference and as far as the agreement not being correct that did not matter as the judge can rule it as OK.

 

I was a bit shocked but not too put off. I thought lets see what the judge decides.

 

So we are called into court and the judge expalined what today was about, he seemed dissapointed that I had not submitted a "proper Defence" I had submitted a holding defence up to this point.

 

I told him I have a new defence with me and would like to submit it, he then said I should have asked the courts permission first!

 

So I said I'd like to submit a new defence!

 

After some general discussion, where we all seemed to contribute it was decided to allow the defence to be submitted, and the case adjourned.

 

So it was an anti climax round 2 is next week so I have everything prepared from my first bash.

 

Well done on your excellent result fingers crossed for the main event.

 

Thanks again to IGNM, Docman and nicklea

 

By the way the judge would not allow costs for their solicitor, he said he had not done anything to warrant the award of costs! So then I said if he's was entitled to costs then I would like them as well, he told me to fill in a form 20 would I do this now or wait for a result and costs in court?

[Mydogsawestie]

Hi ekim777

 

this thread might help you that I came across http://www.consumeractiongroup.co.uk/forum/mbna/195498-mbna-restons.html #209 #210 postings etc ready for my round 2 (when I hear) it might have some useful advice to help you next week. Good luck and I will have my fingers & toes crossed for you.

[ekim777]

Hi Mydogwestie

Many thanks I was impressed by your responses in court I hope I can do as well, seems that every time i find something usefull it does not fit the bill at all.

[Docman]

Hi ekim

 

Firs, well done on the first hearing. At least Arrow now know you can fight back and you know that court hearings can be taken in your stride.

 

Did you turn witness statement into an amended defence and file it with the court?

[ekim777]

Hi Docman

 

The defence was seperate to the witness statement and based on your advice

Are they allowed to swop the wrong termination notice for the right one?