Marlin/phoenix - Credit Card - N1 Received ** DISCONTINUED **

[MAGDA]

Hi Craftygirl, it's very straightforward really, you need to complete an N265, the main part you will be completing will be the section "I have control of the docs numbered and listed here...."

 

All you have to do is list any documents you hold relevant to your defence, i.e., letters from you to the claimant, letters from the claimant to you, you should give each item a ref no. such as 1,2,3 etc. or something like 0.1, 0.2 and the date of the letter, so that the claimant can ask to see a particular item if they want.

 

For correspondence between you and the court I would just put - various from xxxxx date to xxxxxxxx date as I doubt if there will be that much anyway.

 

and then you can include everything else such as POC that you have received etc, under Statement of case common to both parties - various

 

The above should be numbered in sequence following on from the rest.

 

At the beginnig of the N265 (front page) you can just enter info as relevant. i.e., "I am required to make disclosure under the order made by the court on xxxxxxx date.

 

I did not search for documents pre-dateing : xxxxxxxx (enter relevant date - the oldest document that you are including)

 

Located elsewhere than : The records in the defendant's possession.

 

In categories other than : those relevant to this claim.

 

Everything else just put N/A or tick (or not) as relevant.

 

then just sign and send off, you don't need to send a copy to the court unless they have specifically said you should.

 

Also, no need to include case law/legislation which a lot of people do as these are in the public domain and it isn't necessary to list them.

 

Hope this helps, if you need any more info, let me know,

 

Magda

[MAGDA]

were the "without prejudice" letters part of a settlement attempt? If not, as far as I am aware, they are not privileged and should still be disclosed.

[MAGDA]

The one that I would have liked to include, has a bit saying

 

In light of the above, we provide you with the last opportunity to settle this and to sign the consent order.

 

The rest of the letter refers to the fact that the DN would have been issued in a standard format which is compliant with the CCA

 

Hi Craftygirl, as far as I know, unless the letter concerned a genuine attempt to negotiate a settlement, then it isn't privileged, so if you feel the letter, on reading all of it, wasn't really concerned with that issue, then you could include it as far as I am aware. Hopefully someone will correct me if I'm wrong.

 

I think I would just include it and argue that it wasn't part of a settlement attempt (if that's what you believe)

 

Magda

[MAGDA]

Craftygirl, was this debt assigned and if so, have you actually seen the Deed of Assignment and any document referred to, as well as the NoA?

 

Magda

[MAGDA]

they should have disclosed the Assignment on their disclosure list, and you have a legal right to see this document, otherwise how can you know if the Assignment is valid. They sometimes try to tell you that you can't see it as it contains sensitive information, but that is rubbish, you are entitled to see it. Have they mentioned the Assignment on any of the court papers? You might find after seeing the Assignment that this is another point you can defend on. Magda

[MAGDA]

hi craftygirl, is this going to be on the fast track? If they had mentioned the Assignment anywhere such as on their POC, WS, etc, you could send a cpr 31.14 request to the Claimant (or their solicitor, if they have one) specifically asking to see the Deed of Assignment (they have seven days to comply) and any document referred to in it, and if they then didn't respond, send a chase up letter, which shows you have been reasonable). If they still do not respond, send an N244 to the court asking for an order for disclosure of this document, attaching a copy of the cpr 31.14 you will already have sent to the claimant.

 

I would imagine they must have mentioned somewhere that the debt has been assigned? They claim to be the legal owner of this debt and must therefore be able to prove it, otherwise how can you know for sure.

 

Or, another option is to write to the claimant stating that you notice they have not dislcosed the Assignment (Deed of Assignment) on their dislcosure list. You are somewhat surprised as you would expect this document to be in their possession as they claim to be the legal owner of the alleged debt and it is on this basis that they have issued their claim. You would be grateful if they would confirm that they currently hold this document, and if not, why not. (something along those lines)

 

Magda

Edited November 14, 2009 by MAGDA

[MAGDA]

Hi Craftygirl, well once you have the assignment document you can then check whether the assignment is valid and they have a legal right to bring these proceedings, and in their own name. For example, if the date of assignment stated on the NoA differs from the date on the Assignment itself, the notice is ineffectual. Although if no date is specified on the NoA that wouldn't be the case.There is case law to support this, and also case law to support your right to see it, which I have somewhere if you need it at some point, but wait until you actully have the document, then you can post it up and see what's what. Magda

Edited November 14, 2009 by MAGDA

[MAGDA]

If they didn't have these documents Craftygirl, they shouldn't have brought these proceedings in the first place. It's the same with creditors who take people to court knowing full well theydon't even have an agreement - they hope to push it through anyway.

 

Magda

[MAGDA]

Would appreciate comments on the following Witness Statement. It needs a bit of a tidy up, numbering of paragraphs. At the moment, it would be good to have comments as to the content and formatting. Many thanks.

 

PS, the NOAs referred to are in post # 167.

No Default Notice has been received.

 

***********************************

 

 

WITNESS STATEMENT

 

1. I xxxxof xxxxx am the defendant in this action and make the following statement in reference to the claim made by Phoenix Recoveries (UK) Ltd Sarl – Potomac Recoveries pursuant to the Court’s Order xxxxxx.

 

2. Except where otherwise mentioned I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3.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.

 

4. All of the exhibits referred to are from the bundle disclosed to me marked CRAFTY GIRL 42 and their related document numbers can be found at the bottom right hand of each page.

 

Whilst it is admitted that an agreement was entered into with HSBC regulated by The Consumer Credit Act 1974 (The Act). no admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the HSBC may or may not have complied therewith and the extent to which the Defendant may or 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.

 

The Defendant denies entering into an agreement with the Claimant - if the defendant admits entering into an agreement - can remove this.

 

The Claimant’s POCs advise the defendant entered into an agreement with HSBC on 21st March 2005, this is incorrect (EXHIBIT) [ comments please on this paragraph. The OP signed 12 March - HSBC signed 16 March - First transaction 29 March] - although the date is wrongly stated it probably won't make a huge difference in court - at most they may just have to amend their POC.

 

Default Notice

 

 

The Claimant claims, the Defendant has defaulted in his payment and is in breach of the payment clause of the agreement. (Exhibit 1) It is denied that the Defendant has defaulted or is in breach of any agreement and the Claimant is put to strict proof that any such breach has occurred. - I don't think I would bother with this at all as more like a defence, where this will already have been stated.

 

The Claimant avers a Default Notice was issued by HSBC. The Defendant has not had sight of this default notice.

 

Before a creditor can become entitled to take any action in respect of a regulated credit agreement a default notice is a required to be served by section 87(1) of the Act

Furthermore section 88(1) of the Act (Exhibit 4) 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) (Exhibit 5) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) (Exhibit 6). - again don't think you need this, just the factual comments.

 

 

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 postal address of the creditor or owner.- same again here.

 

The Claimant has failed to produce a Default Notice in accordance with the Act and associated Regulations and I put the Claimant to strict proof that it was served correctly, in the prescribed format served sufficiently so that the step of remedy to the default could have been taken.

 

On the xxxx, I wrote to Mortimer Clarke Solicitors requesting a true copy of the Default Notice as one hadn’t been supplied following the Court Order of XXXX. (Exhibit 3)

 

Mortimer Clarke's response stated that ‘Default notices issued by HSBC Bank are standard and in a prescribed format in compliance with the requirements of the Consumer Credit Act 1974. HSBC issued the default notice and it was not returned by the Post Office. The Default Notice is deemed validly served even if you did not receive it, in accordance with Section 176(2) of the Consumer Credit Act 1974. - is this Mortimer Clarke stating this, or are you quoting this section yourself? You could add a new point underneath stating that without sight of the Default Notice I cannot know if it was in the prescribed form or complied with regulations (words to that effect)

 

The Claimant admits on their filing of standard disclosure (Exhibit 2) that they do not have a copy of the Default Notice in their control and therefore cannot substantiate their claim that a Default notice was ever issued.

 

The Consumer Credit Act 1974 s87 & 88 (Exhibits xx) 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.

 

33. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119. - again wouldn't bother with this, as will again be detailed in defence.

 

It is averred that no valid default has been served upon me and therefore the Claimant is precluded from taking this action.

 

 

Notice of Assignment

 

The Claimant claims the account was assigned to them from HSBC on 5th October 2007

 

It is averred that the Notice of Assignment supplied by the Claimant fails to comply with the law & associated regulations covering such actions, that is The Law of Property Act 1925 S136 & S196(4).

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists - can remove this.

 

I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). - can remove this

 

It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169). - could remove this

 

The Claimant has issued two Notices of Assignment to the Defendant.

 

(EXHIBIT) Dated 25th October 2007. There is no date of assignment mentioned in the notice. It is also difficult to establish to which company, HSBC did assign the account to.

 

(EXHIBIT) Dated 1st September 2008. The date of assignment is advised as 18th July 2008, but this assignment takes place, not between HSBC and the Claimant, but between associated companies.

Section 136 of the Law of Property Act 125 states the assignment has to be under the hand of the assignor/assignee so that no reasonable doubt can be found as to who owns the account.

 

It is, therefore not admitted that the account referred to was lawfully assigned to the Claimant. The Defendant has not been permitted to inspect the Assignment(s) relevant to these proceedings and has therefore been unable to satisfy herself as to whether the Assignments are valid which she is entitled to do as a matter of Law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

Therefore in order to establish the authenticity of any alleged assignment of this debt, I require sight of the Deeds of Assignment.

 

 

FURTHER POINTS

 

The claimant seeks to claim interest ‘at the rate pursuant to the agreement namely £xxx and continuing until judgment or sooner payment at the daily rate of £xxx or in the alternative interest pursuant to Section 69 of the County Courts acts 1984; also interest at the rate pursuant to the Agreement from the judgment date until payment’. I note that the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974. It is therefore denied the Claimant is entitled to this sum.

 

In view of matters pleaded, I respectfully request the court give consideration to striking out the Claimant’s case pursuant to CPR 3.4:

 

(2) The court may strike out a statement of case if it appears to the court -

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) 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; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

If the court considers such action inappropriate, it is requested that the court order the Claimant to produce the following documents at a hearing:

 

(a) a copy of any default notice sent by the Claimant in respect of this account & the proof of mailing of such.

(b) the deed of assignment in order to establish the Claimant has a right of action.

 

Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

Dont know where to site the paragraph below.. if it should be included at all.

 

Hi CB/Craftygirl, made some amendments in blue and orange - it's what I would do if it was mine, but up to you if you decide to change. I know you have already said you are going to number each point, so that is ok.

 

Hope it helps - not meaning to pick holes in it CB as you have done a really great job.

 

Magda:)

Edited December 16, 2009 by MAGDA

[MAGDA]

Magda, thank you. That was my main concern that there were some areas that were too much like a Defence. Your help is much appreciated. It will also make it more "user friendly" by being reduced in lenght and with the "jargon" removed.

 

 

 

 

Hi CB, Craftygirl is lucky to have you on board. You've done a great job, so hopefully will do the trick for her.

 

Looks like we are getting there now.

 

Thank you so much CB and Magda xx

 

 

Hope things go well for you Craftygirl. All the best,

 

Magda

[MAGDA]

Hi Craftygirl/CB, don't forget you haven't seen the assignments yet either, I wouldn't be at all surprised if that turns up further ammunition for you - they may say they don't need the DN, but how can you know if it was in the prescribed form without sight of it - they would need to prove without doubt that a DN was served and was valid.

 

Link offered us a Tomlin at the start of one of their claims (which we went on to win) and although it can seem like a way out, you also have to remember that if for some reason you were unable to make a payment they would be entitled then to go back to the court to enforce the terms of the order against you.

 

I think like Andy they are doing this because they are not as confident as they claim. But as CB said, it is your decision at the end of the day and only you can decide, so good luck with whatever decision you make.

 

Magda

[MAGDA]

Re: the DN and hearsay evidence you might find this thread useful:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162535-documents-court-civil-evidence.html

[MAGDA]

Hope your little one is better soon - I know what that's like being up all night. Yes, don't rush into anything - you have to do what's best for you.

 

Magda

[MAGDA]

Yes, I would fight on if it were me, but hopefully (after a good night's sleep:)) you will feel in a better frame of mind to decide what you want to do tomorrow.

 

Magda

[MAGDA]

Hi CG, I would check with the court whether they have received anything first - if they haven't, then wait and see if anything turns up tomorrow. If you still don't receive anything then you could write in to the court advising them that in accordance with their order of xxxxxx your own WS was sent to the claimant on xxxxxx however, you have not received any response from them. I would then state that you request the further direction of the court in order to allow this matter to proceed.

 

The judge will then probably give the claimant a date on which to comply by or their claim will be struck out. If you specifically request that the claim be struck out, the judge will still give them more time, and you would need to submit an N244 and pay the fee.

 

I found in my own case with Link, by wording it as I have above that although I didn't specifically ask for a strike out, the judge had no option other than to order them to comply or that would be the consequence and Link's claim was struck out eventually (and it didn't cost me anything:))

 

Hope this helps, happy New Year.

 

Magda

[MAGDA]

Hi CG, I would write into the court anyway, as you still haven't received any WS from Marlin - is that correct (after all, you managed to get yours off to them) - if the court has a backlog that isn't your problem. That way, the judge may order the claimant's claim to be struck out.

 

The draft directions look fine by the way.

 

Magda

[MAGDA]

I see you have mentioned the WS on your draft directions anyway, didn't notice that - but don't think you have anything to lose by writing to the court anyway. I would definitely give it a shot.

 

Magda

[MAGDA]

Well the best thing you can do then, if the court says they haven't received your letter yet, is to ring and ask if you can email a copy (or fax if you have access to a fax machine) and ask that it be placed urgently before the judge as you require clarification on this. Mark it for the attention of whoever you are speaking to. If Marlins haven't done their WS, it seems to me they don't intend to go ahead with this.

 

Magda

[MAGDA]

Hi Craftygirl, see you have had plenty of advice now anyway. If you had actually received a TN, I think it makes it more straightforward as you then have it in black and white. If you don't have a TN then you can still argue that it was terminated as the original creditor washed their hands of it and sold it on - if that isn't terminating I don't know what is. They all seem to threaten issuing another DN, but at the end of the day, if they did that, they would have to discontinue and then apply to the court (and you will be able to object both to the second DN and the new proceedings) to issue fresh proceedings for the same claim.

 

Thanks for your help with the other matter.

 

Best wishes, Magda

[MAGDA]

They shouldn't be ringing you anyway to discuss the case - you did the right thing - keep it in writing and anything discussing settlements or anything along those lines marked "without prejudice"

 

Magda