FDPM WELL -V-BOS (Preference Account) ***WON***

[fdpm]

bump

 

Is there anyone who canhelp me with my witness statement? Please

[ManOfHarlech]

bump

 

Is there anyone who canhelp me with my witness statement? Please

 

FDPM Witness Statements are not that hard to prepare. Use the one you have from the BOS as a template i.e. include the name of the court, the parties, the case reference number etc in the same places as they have. Just simply change the heading to state it is your Witness Statement.

 

Then set out your case in numbered paragraphs with either 1.5 or double spacing.

 

For me your stratagy is pretty obvious, you argue that you were never issued with a Default Notice. In support you can point to repeated requests for copies of the document and the BOS have failed to respond (include copies of request letters/applications). Also I assume that the DN does-not appear in the document bundle that the BOS wish to reply on?

 

Therefore without a DN the BOS cannot go ahead with formal legal proceedings as they would be in breach of the CCA and therefore the Summary Judgement has to be dissmissed.

[fdpm]

PLEASE please please can one of you more experienced Caggers look over this and let me know if it is okay? I'm in court on Wednesday:

 

 

 

 

 

Notice of Hearing of Application in the ?????? County Court

 

Claim Number xxxxxxxx

 

Claimant: xxxxxxxxxxxxxxxxxxx

 

Defendant: xxxxxxxxxxxxxxxx

 

Original County Court Summons issued xxxxx 2009 through Northampton CC.

 

Particulars of Claim:

The Claimant’s claim is for £xxxx.xx presently due pursuant to a credit agreement entered into by the parties, full particulars of which have been supplied hitherto.

By an agreement dated xxxx/1999 the Defendant has an account number 00000000 with the claimant. The Defendant has failed or delayed to adhere to the terms of the Default Notice issued by the Claimant under the terms of the Consumer Credit Act 1974. The balance due as at 00/00/2009 on said account is £0000.00.

 

 

I, FDPM, of my address WILL SAY AS FOLLOWS:-

 

 

• The contents of this statement are true to the best of my information, knowledge and belief.
  
• The Claimant, xxxxxxxxxx has stated that on 0000000 1998 by signature of an Account Application Form, I entered into an overdraft facility with Capital Bank. I deny this as I never applied for an overdraft facility.
  
• The Claimant has also argued that because this is a bank account that it is not regulated by the Consumer Credit Act 1974 and yet, in their original County Court Summons issued on 00000 they claim “The Defendant has failed or delayed to adhere to the terms of the Default Notice issued by the Claimant under the terms of the Consumer Credit Act 1974”
  
• In part 9 of Claimant’s Witness Statement the Claimant refers to the Defendant using the “credit card”
  
• The card was shown on my credit report as a CREDIT CARD, the statements I received always showed a CREDIT LIMIT and I would argue that if it was truly an overdraft facility and a bank account that I should have been encouraged to pay my salary into the account and the statements would have shown an OVERDRAFT LIMIT.
  
• The Defendant understands that it will now form part of the Claimant’s Claim that this agreement is not a regulated agreement under the CCA 1974. The Defendant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, please see this extract from a Court case (Coutts v Sebastyen) which is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;
   
  “The Defendant provided an overdraft on the account;
  a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and
  b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.
   
  Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.
   
  Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):
  "74. – (1) This part …. does not apply to –
  (b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …
  (3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –
  (a) may be made subject to such conditions as the OFT thinks fit …
  (3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.
   
  THE DETERMINATION:
   
  The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:
  
  "1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.
  2. This Determination is made subject to the following conditions:-
  (a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;
  (b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:
  - of the credit limit, if any,
  - of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,
  - of the procedure for terminating the agreement;
  and this information shall be confirmed in writing.
  © that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.
  3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."
   
   
   
  
• The Defendant, therefore, puts the Claimant to strict proof of;
  

a. The contractual agreement between both parties in relation to the Current Account, allowing the Defendant to request overdraft facilities and which terms and conditions were included as part of that agreement;

b. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Defendant at the time of application for an overdraft by the Defendant;

c. Where no such agreement can be provided, copies of original documentation sent to the Defendant that complies with the Office of Fair Trading Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

 

 

• In its reply to the Defendant Part 31 request dated vvvvvvv the Claimant enclosed a copy of an alleged Default Notice said to be issued on bbbbbbb and issued in accordance with s.87(1) CCA 1974.
  
• The Defendant is prepared to swear on oath at trial that such Default Notice was not issued at the time the agreement was terminated by the Claimant and, accordingly, puts the Claimant to strict proof of said issue and receipt of that Notice.
  
• The Defendant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Claimant is not entitled to rely on that default or termination in Defaulting the Defendant.
   
  
  

[Tonka99]

:)Hello FDPM

 

You need to hit the Red triangle bottem left hand corner to

ask for help from the site team .

 

I do not wish to comment but do wish you well im in court

on Tuesday .

 

Tonks:)

[fdpm]

Thanks Tonks,

 

I read through your thread last night - good luck for Tuesday.

 

I'm trying to sort my stuff out and look after two very aged parents in law as well as go to work... so always doing this just before or late at night which isn't conducive to concentration!

 

I also think I'm too late because the 7 days was up last week but I thought if I could at least list all the points I need to raise then at least I could quote it to the DJ on Wednesday.

 

Thanks

 

Fdpm

[42man]

Witness statement looks fine to me FDPM....I have included a couple more here which may assist...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-10.html#post1891351

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/148840-enforcable-agreement-mbna-help-6.html#post1877388

 

I think you'll need a half decent judge too....

[hungrybear]

looks fine to me. Remember to be a subservient forelock tugging LIP to the judge. Your objective is to ingratiate yourself and be afforded latitude as a none legally trained person. Then when the other side least expect it whip out your baseball bat and let 'em have it!

 

The fact is that they lent you money to be paid back in more than 4 installments over more than 12 months. Therefore it's either CCA or a gift

 

and remember

 

current account = banking code FSA

overdraft = section 10 cca

 

Completely different agreements and contractual relationships.

 

But your initial goal is that it's a credit card so where's the part v compliant agreement.

 

I'll be there with you in spirit!

[Tonka99]

Hello FDPM

Maybe you could email it to the court explain you didnt realise

it had to be in 7 days before , FAO DJ x put your case no ect

dont think you have anything to lose by trying .

 

All the best

 

Tonks:)

[supasnooper]

As Tonks has said, get it submitted to the court ASAP

 

You can fax it, e-mail, post it by Special Delivery but get it submitted !!

I'd also attach a grovelling apology for the oversight as well.

 

If you don't submit your defence before the hearing, the Judge may not allow it to be used.

[miss money worry]

sorry...can anyone tell me how to start a new thread similr to this, credit cards cca etc etc. good luck with this one! I have over £100k to deal with, HELP, how do i start a new thread please! x

[supasnooper]

sorry...can anyone tell me how to start a new thread similr to this, credit cards cca etc etc. good luck with this one! I have over £100k to deal with, HELP, how do i start a new thread please! x

 

 

Have look at post #1 of this guide by Bookworm -

 

New User Guide to CAG

[fdpm]

Big THANK YOU to all of you who have made suggestions and helped me - I have emailed my WS, LIP Costs and an apology to the DJ for the late sending of both and now I'm in the hands of God and the DJ - (that could be a song title!)

 

I will let you all know the outcome after Court tomorrow...

 

Fingers and toes crossed!

[kel123]

Good advice from M0fH in the first paragraph, in post 21. Remember your focus is to take it further not to win the case (this was my mistake)

 

Good hunting and good luck

 

Kel

PS if all else fails try not to get locked up

[fdpm]

I will try ... lol

 

My friend is coming with me to court so at least I wont be facing it all alone... though it is scary! The court is a combined one with both County and Crown so they could lock me up....

[fdpm]

Well, I'm home again and not in jail yet!

 

Today we arrived at court promptly and found our way up to the DJ rooms.

 

The chap from the other side was a paralegal and very nice - he offered to answer any questions I might have regarding the procedure but I declined gracefully.

 

The DJ was a lady and awfully nice - she allowed me to state my case and then asked the paralegal to state the bank's case.

 

I argued that the bank seemed to be trying to circumvent the CCA 1974 by calling their credit card an overdraft and I did mention the phrase "if it looks like a duck and walks like a duck" (couldn't help myself)

 

I also pointed out about the credit limit and the fact they had called it a credit card even in their WS! I stated that I had submitted my defence on the grounds of their original CCS and that they now seemed to be going away from that and moving the goalposts which was at the least very confusing and most, underhand.

 

They focussed very heavily on the application form I had signed and said it was an agreement? and also the pl said that they had proof of sending the DN because the computer said so.

 

Anyway - the Judge listened to all the arguments and summarised that she didn't feel it was 'fair' to make a Summary Judgement but that she would lift the 'stay' and allow the bank to amend their Claim. She set a date for them to have this in by and then said that I would have until such and such a date to submit my defence.

 

She also said she needed to warn me that the costs would be much higher.

 

With regard to today's costs she said that as we had each won half the battle, she felt it only fair to deny either side their costs.

 

So.... I have loads of more research to do into the Preference account, the dodgy non-receipt of the DN and the laws regarding overdraft credit accounts and credit cards in relation to the CCA.

 

Any help anyone can give me will be gratefully received but for now, let's chalk up half a victory.

 

The best bit was that when I got home there was a letter from the acting solicitor enclosing by way of service their costs... which they cannot have!

 

Cheers !!

[kel123]

Well we are two peas in a pob arn't we, me given an SJ's and you suffering them having to resubmit - amazing!

 

What was her actual ruling regarding a credit card or a current account

 

Anything I can help you with just ask

 

Kel

 

After re reading, amended first line

Edited November 18, 2009 by kel123
cannot read

[supasnooper]

Well done on fighting your corner and getting the SJ dismissed.

 

The Judge got it wrong in respect of costs though, as you clearly won if the SJ was denied.....but hey ho there you go.

[fdpm]

Thanks kel and ss -

 

The Judge didn't really rule on whether the card was a credit card or overdraft; I think she was as confused as me!

 

What she did say was that it seemed clear that I had entered into a credit agreement but whether or not it was an enforceable debt remained to be proven... so I think she wants to see much more 'evidence' from both sides before she can make a ruling.

 

It will be interesting to see what the bank throws next... but in the meantime I will search through the whole of this site tofind everything I can about the 'preference' account, about DNs and I will read up everything I can on the CCA. I´m still not convinced about the DN because I genuinely never received one and I need to understand exactly what the difference is in relation to the CCA if one is to accept the card was an overdraft...and how an application form can be accepted as an original agreement.

 

Thank goodness I have almost two months to prepare.

 

Any advice from anyone will be very useful and I know from previous experience of caggers, that such help will be forthcoming in due course.

 

Just for today I am enjoying the fact that I was able to be coherent and polite and had the opportunity to state my case -

 

We have an awful lot of 'other' stuff going on with parents with disability and dementia so all of this is quite stresfull but with the help of others I know I'll be able to make a solid defence and hopefully win my case and enable others to do so too.

[kel123]

Sorry about my gobbledeegook in post 41, I was in a rush and tried to read and type at the same time and it came out backwards:)

 

When have they got to get their new attack in by

 

Kel

PS if I didn't say it before; well done

[Tonka99]

Hello FDPM:)

 

Well done on getting in there and giving the other side the two

fingers up yours

 

If you go to search at the top of the page and hit in "prefence

accounts " you should be able to find some other threads which

will help you with your case .

 

I would think you will sleep better tonight as well

 

All the best

 

Tonks:)

[fdpm]

Thanks Tonka and kels, they have got until early December to start their ball rolling and then I have a month to prepare my defence so in the meantime, research, research research! and loads of late nights...

 

Whereabouts are you in your case?

[saintly_1]

Well done title amended

[creditman09]

I have gone down the Claims Management Compnay route and have a solicitor who is chasing Bank of Scotland regarding a Preference Account.

They are acting under the Consumer Credit Act.

Also, I had received a default notice under Section 87(1) of the Act from BOS which seems to be a giveaway.

There are a lot postings on this site why not refer to this;

 

Fred Bassett v Bank of Scotland/Blair Oliver Scott - Page 12 - The Consumer Forums

[hungrybear]

I would class that a 100% victory. They tried to roll over you and you saw them off!-well done.

 

Did you raise the fact that an overdraft is cca anyway? - just wondered what the reaction was.

[palomino]

... and also the pl said that they had proof of sending the DN because the computer said so.

What a stupid comment. Did the computer appear in court to give evidence?

 

Simply because it appeared on a computer screen -

* does not mean the notice was actually printed out

* does not mean the notice was actually posted (unless they obtained a certificate of posting)

* does not mean the notice was actually delivered (unless a receipt was obtained)

 

If they wish to offer in evidence the details of their procedures which ensure that the notice is at least posted then they will have to ask the court for permission to introduce hearsay evidence. I'm not an expert on this but hopefully others here will be able to expand on this point.