Cabot Claimform - goldfish card

[thesecret]

Thankyou AndyOrch

I honestly dont know where to start with the WS other than going through each point raised which will get confusing due to the case law involved

The time its taken for me to get the information must go in my favour

I am going through the file at the mo and need to get the initial claim out I believe its around 6k

I will quantify the charges PPI and others each on a separate sheet to go as a counterclaim/defence.

Some pointers as to where to start and where to focus my defence would be appreciated.

Many thanks for your time and help

TS

[AndyOrch]

They state in their WS that they have now disclosed in response to your CPR request.If you could scan in what you have received ie Agreement T&Cs DN NoA

less any identifiable data.IMHO they have a nerve trying to reinstate this after being struck out but to request SJ also is incredible and their WS laughable.Any decent DJ would and should throw out their draft order but never the less we always get one so better prepare.

 

Andy

[thesecret]

Added T+C, Application form, Default Notice, NoA

 

T+C are poor quality but scanned anyway

 

http://s559.photobucket.com/albums/ss40/micallef_lynn/Cabot/

[AndyOrch]

Ok Lynn

 

All reconstructed and hashed together from their stationary cupboard, apart from the application form which is unenforcible due to the lack of prescribed terms.

If thats the best they can muster after 2 years and expect a DJ to reinstate their claim and grant SJ is beyond words.

 

Regards

 

Andy

[thesecret]

Thats good news..

What is my best line of attack with this information

Best

Lynn

[AndyOrch]

You need to submit a WS in objection to the reinstatement & SJ application and rip theirs to shreds as to why it shouldn't even be considered and that the claim remains struck out.

 

Regards

 

Andy

[thesecret]

I'll crack on with that tomorrow.

Can i ask you to look at my drafts?

And is there any particular template i should follow?

Sorry to ask but i really don't want to mess this up, I haven't got 6k spare should this go in their favour

Lynn

[AndyOrch]

No templates as its your unique response.Don't worry Lynn anything you post ill check.

 

Andy

[thesecret]

Thank you so much

[thesecret]

First attempt, pointers please

 

TS

 

 

1. The defendant wishes to object to any summary judgement being made.

2. The claimant has finally after 2 years of initially requesting received CPR r31.14 disclosure finally enabling the defendant to compile a suitable defence and or counterclaim. This is not a defence in itself but was required due to lack of documentation provided on the filing of this claim into court by the claimant.

3. The claimant has not made contact with the defendant at any point during this period to explain any reasons for such a delay in retrieving the information nor to advise that they had located said information.

4. Due to the delay counterclaims have been seriously undermined due to miss sold PPI and excessive penalty fees/charges added to the account.

5. The Unless Order made on the 14th October 2009 by District Judge McHale has not been adhered to

- No prescribed terms on the application form rendering the claim unenforceable

- Barely Legible Application Form

- Illegible Terms and Conditions.

- Representations of letters purported to of been sent to the defendant

6. The defendant has had no problem in complying with the court within the set time lines and feels aggrieved that due to the claimants lack of organisation they have not just disobeyed the unless order but also missed the time limit, not by few days but a massive 2 years.

7. No defence has been submitted and as such summary judgement should not be given.

8. The defendant asserts that the claim remains struck out.

[AndyOrch]

Hi Lynn

 

Ok you have all the basic points of your argument now it needs to be laid out so that your issues raised have teeth.Points of objection empasised

no points of law or case comparisons should be included within a WS but can be referred to in your words.Place their WS at the side of yours and go through

their points in order with your response.We have until next Mon/Tues to get this away and finalised.

 

Regards

 

Andy

[thesecret]

Hi Andy,

I'm having a real struggle to understand / find any relevant case law which is relevant in the case library and i'm getting myself in a right state.

Is there anywhere else i need to be looking.

[AndyOrch]

I will come back to you a little later Lynn.

 

Regards

 

Andy

[AndyOrch]

Witness Statement

 

 

1 This statement is made in opposition to the Claimant’s application for Reinstatement of Claim & Summary Judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 In accordance with the District Judge Mchale order dated 14th October 2009 this claim was struck out 24th November 2009, due to the Claimants failure to respond to disclosure.The Claimant made application for extension to disclose which again was received late this was quite rightly refused.I do not deny that a contract once existed between myself and Goldfish but as at this date the claimant has yet to prove any assignment or debt. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract.

 

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

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) 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.

 

5 I deny that I have ever received an effective or valid Notice of Assignment from the Claimant or their predecessor prior to the contract being terminated.

 

6 The claimant has already admitted in their actions to this claim and their reluctance over a 2 year period that they are unable to produce any original paperwork

in support of their claim having now produced on the 15th August 2011 Reconstituted versions of both the Default Notice and Notice of Assignment

 

7 At trial I will contend that the reconstituted versions are inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

8 The reconstituted version evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

9 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have looked like this is a contradiction in itself and serves no purpose in demonstrating that any alleged debt is due to any breach.

 

10 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

11 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

12 Without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the claim should be reinstated and considers the order made on 14th October 2009 be a draconian measure contrary to the Administration of Justice Act CPR 1.1.I the Defendant invite the Claimant to explain and corroborate this statement, the claimant was allowed sufficient time as myself to follow the procedure and any failure would and did suffer the consequences set by the District Judge in these procedures.

 

13 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, should any reinstatement be allowed, 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.

 

14 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 Reinstatement and for Summary judgment against me should be dismissed and that the claim remain struck out as per his order dated 14th October 2009

 

Date: xx July 2009

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

 

Ok Lynn check the above and dates and complete were im not sure marked xxxxxxx.

 

Regards

 

Andy

Edited August 23, 2011 by Andyorch

[thesecret]

Thats fantastic

i have 528 in late fees not including interest - do i need to include interest?

[AndyOrch]

Just enter the fig net Lynn less interest at this stage.

 

Andy

[thesecret]

All submitted yesterday. Thank you for your help, I think I understand it all.

I'm assuming the hearing happens next?

Lynn

[AndyOrch]

Yes hearing next I assume you sent the Claimants a copy also?

 

Regards and best of luck

 

Andy