Advice needed for imminent court hearing - Stat Demand

[Fyffesy]

Hi all.

 

Sorry for the lack of posts recently. To be honest, nothing of note has happened since the adjournment. However, the next hearing has been scheduled for a date not too far away and I'd like to ask for some advice if anybody would be kind enough.

 

Basically, the DCA have supplied myself and the court with a new witness statement in which they admit that one of the alleged debts is indeed statute barred.

 

With regards to the non statute barred debt the statement makes no mention of the "credit agreement" which i believe is not enforceable under the CCA. Instead, the majority of the statement seems to concentrate on attempting to prove that a

Deed of Assignment is not required and that a Notice of Assignment does not need a signature or date. They have included a copy of a court case from 1968 which they claim is proof that this is the case.

 

Basically, does anybody know of any court cases which I could refer the court to which are historic examples where the judge has ruled in favour of the "debtor" because of any of the following:

 

1) The credit agreement was not enforceable under the CCA because it was illegible or did not contain the prescribed terms.

 

2) The Notice of assignment was not valid as it contained no date and signature.

 

Furthermore, the DCA are claiming that the Notice of Assignment is valid even though it states that the debt was assigned to Cabot Financial (Europe) Ltd two years before that trading name was registered. The company was actually in existence at the time of assignment but was named Kings Hill (No1) Ltd. Therefore, the Notice of Assignment from the original creditor has in fact been faked by Cabot. The DCA seem unconcerned by this fact.

 

Anyway, any help would be appreciated

Edited June 27, 2009 by Fyffesy

[foolishgirl]

I'm flabbergasted - particularly this bit

 

 

Furthermore, the DCA are claiming that the Notice of Assignment is valid even though it states that the debt was assigned to Cabot Financial (Europe) Ltd two years before that trading name was registered. The company was actually in existence at the time of assignment but was named Kings Hill (No1) Ltd. Therefore, the Notice of Assignment from the original creditor has in fact been faked by Cabot. The DCA seem unconcerned by this fact.

 

 

They obviously have psychic powers - hope they bring their crystal ball to the hearing so they'll know in advance how stupid they are going to sound to any DJ with even half a brain!

 

Anyway to help with your other points -

 

1. Which case have they included as ?proof of their case?

 

2. The case law you're looking to for confirmation of S60 CCA 1974 & 1983 Regs re. prescribed terms is Wilson v First County Trust (para 5):

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

 

3. Re. NOA - don't think there is any standard format as long as the debtor is informed that the debt has been sold so they would have to demonstrate proof of posting. However re. the date - if it is incorrect it is

legally invalid (i.e. does not tie in with the deed of assignment - the execution of assignment should be the same as the date shown on the notice).

The case that supports this is WF Harrison & CO LTD v Burke & Anor 1956 [2] All ER 169. This info is on this thread along with other useful stuff:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/123771-validity-debt-assignment-re.html

[Fyffesy]

Thanks FG.

 

I'll have a read through all that. The case they have included is: Van Lynn Developments Ltd v Pelias Construction Co Ltd (8,9 October 1968).

 

Incidentally, do you think it makes any difference that the letter from the Court states that the creditor shall file and serve a statement from the solicitor who issued the first statement, but the DCA have decided to issue this second statement themselves instead of the named solicitor?

 

Basically the person ordered to file a statement has not done so and a different person has stepped and makes no reference to his reasons for doing so.

 

I think this guy is taking it personally because I've had the audacity to challenge, question and correct him. He informs me that he's going to "inform the court of my conduct" despite the fact my "conduct" has discovered that his company had made an incorrect statement to court regarding a statute barred debt.

 

Oh and just to top it off, my "conduct" has forced the DCA to admit that they have a tape recording between myself and one of their phone scamsters despite not including it with my SAR. They claim that this was because obtaining the relevant recordings would amount to a disproportionate amount of effort. Funny how the SAR provided a letter addressed to the FOS where a member of staff at cabot quotes certain aspects of the call.

 

Clearly they are concealing the dirty tricks which their phone monkey attempted during this call as they fear a copy may end up at Trading Standards.

 

Anyway, that's my latest rant over with. I'm off to read up on the new info.

 

Thanks again.

[foolishgirl]

 

I'll have a read through all that. The case they have included is: Van Lynn Developments Ltd v Pelias Construction Co Ltd (8,9 October 1968).

 

I'll see if I can find it..

 

Incidentally, do you think it makes any difference that the letter from the Court states that the creditor shall file and serve a statement from the solicitor who issued the first statement, but the DCA have decided to issue this second statement themselves instead of the named solicitor?

 

Think it would depend on what the statements are saying eg. is the DCA countermanding or confirming something only the sol. would have knowledge of? If both the DCA & sol have first hand (i.e. not hearsay) knowledge I suspect the DJ would accept the info. had been provided in accordance with court orders.

Basically the person ordered to file a statement has not done so and a different person has stepped and makes no reference to his reasons for doing so.

 

Make a note - it may be worth querying in front of DJ at the hearing

 

Oh and just to top it off, my "conduct" has forced the DCA to admit that they have a tape recording between myself and one of their phone scamsters despite not including it with my SAR. They claim that this was because obtaining the relevant recordings would amount to a disproportionate amount of effort. Funny how the SAR provided a letter addressed to the FOS where a member of staff at cabot quotes certain aspects of the call.

 

Now if this was a County Court claim, you could demand a transcript as 'hearsay evidence' under the Civil Evidence Act 1995 but as this is BC proceedings, I don't think you can apply it. (although I'm happy to be corrected ) However no harm in bringing the fact to DJ's attention.

 

 

FG

[Fyffesy]

Would you suggest I inform the Court and/or the DCA of which cases i intend to refer them to in advance?

 

Also, how likely do you think it'll be that the DCA turn up in court with a true copy of a notice of assignment (and not the one they faked) as well as the original credit agreement (and not the illegible one provided)?

Edited June 30, 2009 by Fyffesy

[foolishgirl]

As I understand it, the sol. produced WS & docs. at the last minute & the DJ adjourned to give you chance to look them over. It would therefore be in order for you to issue a similar witness statement based on refuting the points he has made & referring to the cases you intend to bring up at the hearing. IMO I think it would be to your advantage - courts don't like surprises, you're not Perry Mason & it has to be issued to the other side & the court in advance of the hearing (at least 7 days, pref. 14) or you will get hauled over the coals as the sol. did! If you need help on the format, shout.

[Fyffesy]

Good point FG.

 

Do you have an opinion based upon the possibility of the DCA providing actual correct documentation at the hearing? Can they do this even though they have only provided me with a mocked up NOA and a illegible application form masquerading as a credit agreement?

[foolishgirl]

Well in theory, they could turn up with all the docs. in order but then they would have to explain to the court why they hadn't produced these before now (particularly as they were late on the last issue date!) & also why they hadn't been included as part of your SAR. (it is a legal requirement that all info. has to be supplied under the DPA when requested so the ICO would like to know too I suspect).

 

However if they do supply valid docs, you can either ask the DJ to disallow their admission or seek an adjournment again in order that you may study them properly. If it was me, I would seek disallowance & kick up a fuss (in the politest way of course) stating that the claimant had already had 2 attempts at providing the info. required by the court & both 'out of time', how many more attempts were they going to be permitted etc?

 

BTW I've found ref. to the Van Lynn Developments Ltd v Pelias Construction Co Ltd (8,9 October 196:cool: 8) case on CAG:

http://www.consumeractiongroup.co.uk/forum/legal-issues/149916-notice-assignment-both-parties-3.html

Think they are probably trying to claim the NOA doesn't have to be issue in writing & or dated but they would still have to prove you 'had reasonable expectation'.

Edited July 3, 2009 by foolishgirl
amendment

[Fyffesy]

Thanks FG.

 

I would like to think that the Judge would take a dim view of the fact the NOA states that the account was assigned to a company that did not exist at the time.

 

I think i'm just going to keep it as simple as possible in court. I suppose the entire hearing now revolves around whether or not the "credit agreement" is in fact an application form and whether the NOA is valid or indeed required.

 

There's not a lot more i can do other than let the Judge decide. I sincerely hope it goes my way because today i received a summary of costs from Morgan solicitors which exceeds £1000.00. I consider this to be outrageous based upon the fact that their input consists of ONE error ridden, factually incorrect Witness Statement which was not submitted to the court and consequently caused the Judge to adjourn the original hearing.

[foolishgirl]

 

I would like to think that the Judge would take a dim view of the fact the NOA states that the account was assigned to a company that did not exist at the time.

 

I think i'm just going to keep it as simple as possible in court.

 

Good approach I think & don't let the sols. try to confuse the issue with spurious argument over NOAs, keep pulling them back to the matter of no agreement (i.e. applic form). No agreement, no enforceability in any sense.

 

There's not a lot more i can do other than let the Judge decide. I sincerely hope it goes my way because today i received a summary of costs from Morgan solicitors which exceeds £1000.00.

 

If you are unlucky & lose, contest the costs claim. Don't forget to submit your costs before the hearing too - and claim for as much as you can!

 

Good luck, I'll be thinking of you...

[Fyffesy]

Thank you.

 

Well i'm all prepared and ready to roll. I have a simplified list of issues which i will raise (basically explaining why i believe the "credit agreement" is an app form and why the NOA is not valid). I also have a plan B where i can go into more detail should it be required. I think i have covered every eventuality and every trick they might try so i'll be ready with a quick response. But you never know with these people. They seem to have a personal vendetta against me and they appear to be very confident of winning. They seem unphased by the fact i have proven that the NOA states the account was assigned to a company that did not exist until around 18 months later.

 

At the end of the day though, it's only money. There's a lot more important things in life.

Edited July 5, 2009 by Fyffesy

[Fyffesy]

Hi all.

 

Just thought i'd give an update on this. Basically i won in court and the Judge set aside the Stat Demand. It effectively came down to the fact that the Barclaycard account has potentially reclaimable charges which would bring the debt below the £750 required. The Judge really wasn't interested in any other points. Many of which i raised previously in this thread.

 

I am now awaiting the response from the DCA and i suspect this isn't over. They really do have a vendetta against me.

 

Thanks to everyone who gave me advice. I will keep you updated on the scoundrel's next move. Obviously I will donate to the site which has been immensely helpfull to me. In short, there was simply no way I could've done this without the CAG.

 

Thanks again.

[42man]

Did you get your costs Fyffesy ?

[foolishgirl]

Congratulations fyffesy!

 

At least that´s Round 1 to you even if they try to get you again. You just have to keep punching at them until they´re flat on the canvas...

[Fyffesy]

42man I'm ashamed to say i forgot entirely to raise the subject of costs with the Judge and he made no mention of it. He just gave his verdict and asked us to leave. I know i should have asked but i was so relieved that he sided with me, i just wanted to get out of there.

 

Thanks FG. I've no idea what their options are now. I haven't researched anything beyond this stage but i will do so i'm prepared for their next dirty trick. Whatever that may be.

[lilly white]

well done.