Are these CCA's enforceable

[shirei12]

Well I suppose it comes as no suprise that they have as yet, not forwarded a copy of theirs.

[shirei12]

I didnt get a copy of AQ from Sols,but I have now had Notice of Allocation to the Small Claims Track (Hearing). The hearing has been scheduled for middle of April. The following orders issued:

i'. Each party must deliver to every other party and to the Court Office copies of all documents(e.g. letters,estimates,invoices,emails,photographs etc.) on which that party intends to rely at the hearing no later than 4pm on ** March 2011. This must include any documents already sent to the Coury e.g. when filing AQ.

ii. The originals documents must be brought to the hearing.

iii. Everyone (including the parties themselves) who is to give evidence must make a written statement and send it to every other party and to the Court office by no later than 4pm on 88 March 2011.

 

It then goes on to explain how to set out a witness statement .

 

Never had one like this before, HELP

[AndyOrch]

I didnt get a copy of AQ from Sols,but I have now had Notice of Allocation to the Small Claims Track (Hearing). The hearing has been scheduled for middle of April. The following orders issued:

i'. Each party must deliver to every other party and to the Court Office copies of all documents(e.g. letters,estimates,invoices,emails,photographs etc.) on which that party intends to rely at the hearing no later than 4pm on ** March 2011. This must include any documents already sent to the Coury e.g. when filing AQ.

ii. The originals documents must be brought to the hearing. Thats what we wanted to see Shirei

iii. Everyone (including the parties themselves) who is to give evidence must make a written statement and send it to every other party and to the Court office by no later than 4pm on 88 March 2011.

 

It then goes on to explain how to set out a witness statement .

 

Never had one like this before, HELP

Dont worry straight forward.

 

Excellent Order Shirei the DJ as followed our Directions to the letter and they cant hide behind a reconstituted.

 

Regards

Andy

 

[leopard lady]

subbing

[shirei12]

I have checked with court today and the hearing fee has been paid so I guess I should make a start on getting together some documents to deliver.

I am not sure if they are only the ones mentioned in AQ. Also I have never prepared a witness statement before and could do with some direction please.

[AndyOrch]

Ok disclosure is done via the N265 download here n265_1005.pdf

This is exchanged simultaneously and you need to list all relevent documents you wish to disclose and have referred

to in your defence.

On exchange of the N265 you will select and exchange documents you require sight of or need pertaining to your case.

 

I will get back to you re WS Shirei but the above is your next course in this action.

 

Regards

 

Andy

[shirei12]

Dont worry straight forward.

 

Excellent Order Shirei the DJ as followed our Directions to the letter and they cant hide behind a reconstituted.

 

 

I have re-read paperwork from Court and its Judges Direction NOT Order Andy,

I have looked at the N265,it looks a bit daunting.

[AndyOrch]

Dont worry straight forward.

 

Excellent Order Shirei the DJ as followed our Directions to the letter and they cant hide behind a reconstituted.

 

 

I have re-read paperwork from Court and its Judges Direction NOT Order Andy, Same thing Shirei it as to be done

I have looked at the N265,it looks a bit daunting.

You only fill one section in and list your docs

 

[shirei12]

Well thats a relief!! I will get on with that,I will appreciate guidance with witness statent Andy,Cheers.

[shirei12]

Andy, Do I just supply documents and letters from when Claim was issued???

Thanks

Shirei

[cymruambyth]

I was advised to include all documents that I wanted to refer to and included CCA request, their replies etc.

[shirei12]

Thankyou cymruambyth, Andy can you confirm how far back I need to go???

[AndyOrch]

Hi Shirei.

 

You disclosure list should contain any relevant documents pertaining to your case.Relevance and of use, so if referred to in your defence

ie you mentioned a dispute then anything related to said despite goes in.Just remember if its not on your N265 you cant use it.Dont list docs like summons/defence/AQ as the other party will already have these. Anything that can damage the claimants case is a must IMHO.

 

Andy

[shirei12]

Thanks Andy, what about the witness statement I have never done one before. I have to comply by 8th March.

 

Shirei

[AndyOrch]

If you have to comply before the 8th then you need to submit by tomorrow (7 working days in advance)

I can only give you an example Shirei which you can edit to suit unfortunately as i dont have the time this week.

 

Post you one shortly.

 

Regards

Andy

[AndyOrch]

Ok this is how to format your WS and should contain evidence refuting the Claimants Statement.You can edit/add the finer details to suit your case dates etc..

You will have to add the header Name v case number etc

 

Witness Statement

 

 

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

 

2 I do not deny that a contract once existed between me and the claimant. 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 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screen shot from a “Mida” system that shows the entry XXXXXXXXX

NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screen shot is 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.

 

9 The screen shot 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.

 

10 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 allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a letter before action

on the 14th April 2008 demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 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.

 

13 without prejudice

to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and They therefore request the claim value to be amended to £XX XXX XX. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

14 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, 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.

 

15 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.

 

17 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 summary judgment against me should be dismissed

.

 

Date: xx July 2009

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

 

 

The above Shirei is WS in opposition to a Summary Judgment application but the layout is the same just change any reference to an application for Summary Judgment. If I get chance I will check your final draft.

 

Regards

 

Andy

[shirei12]

Thanks Andy but this WS seems based on DN which in my case is not relevant.Do you have any idea where can I find similar for my situation???

 

OMG just seen this post on previous page:

"If you have to comply before the 8th then you need to submit by tomorrow (7 working days in advance)

I can only give you an example Shirei which you can edit to suit unfortunately as i dont have the time this week."

 

I dont have anything stated in paperwork that says this!!!

Edited February 28, 2011 by shirei12

[AndyOrch]

It also refers to summary judgment as i said, it was just to give you an idea of form and layout ,your content is unique to your case,

in your words and as such there is nothing similar that can just be copied and pasted Shirei.

 

Andy

[shirei12]

If it is tomorrow its game over.

[AndyOrch]

Heres another I did for Karenza

 

Witness Statement

1. I Karenza the Defendant in this claim make this statement in opposition to the above claim, under agreements xxxxxxx and xxxxxxxx referred to in the Claimants Particulars of Claim dated xxxxx.

This statement is true to the best of my knowledge and belief.

With regards to the account number xxxxxx pleaded in the particulars of claim and amalgamated into the summons total, I shall contend at trial I have no knowledge or connection whatsoever.

Furthermore It is noted that that the Claimant has recorded this amount and debt with all the Credit Reference Agencies and as yet to prove that i am liable.

It is not denied that the one other account once existed between myself and Morgan Stanley assigned to Goldfish.An account that was subjected to a payment plan and agreed by the OC which therefore replaced any original Terms and Conditions.

2. At trial I shall contend that under Section 87 of the CCA 1974 the creditor must deliver a default Notice which complies with all the requirements of Section 88 and 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 contention that the Claimant has never served said Notice.

3.On or about the 1st April 2008 I received a letter from the Claimant dated 28th March 2008 purporting to have been assigned my " account " from Morgan Stanley/Goldfish.This has yet to be confirmed by the hand of the assigner.

4. On the 16th April 2008,I made a request to the Claimant under S78 of the CCA for a copy of my Agreement. I received various responses dated 29th April,13th May,19th May and 1st June 2008 respectfully, three months after my initial request. (Exhibit IB1/2/3/4/5 and 6)

On the 19th December 2008 I received a response dated 15th December enclosing various documents

A representation of a letter from the Claimant dated 26th March 2008

An Illegible copy of a Pre Contractual Application form

A separate set of Terms and Conditions

Two half page statement of account

A representation of a Notice of Assignment dated 29th February 2008 even though they had already informed they had been assigned 28th March 2008 (Exhibit IB7/8/9/10/11/12)

5. On the 20th December 2008 I received a further letter from the Claimant, dated the 16th December to inform me that Interest will continue to accrue until a repayment plan was agreed. Exhibit I 13

A further letter was received dated 18th December "Reviewing your Account" asking why I had not requested information the CCA regarding the unknown account number.Implications are made that because I did not request information under the CCA and implied that I remained liable for this unknown debt.They also acknowledge the complaint and referred it to their Customer Relations and apologised for any upset and distress that this had caused but still marked it as a default with the CRAs anyway ( Exhibit 1 13/a)

6. Throughout this period I was subjected to intolerable telephone harassment and therefore wrote to them to request that they cease as the account was now in dispute. (exhibit I 14)

I continued to receive letters requesting payment in full or a payment proposal and a continued increased balance figure which included the unknown debt.

7.On the 25th January 2009 I wrote to the Claimant in relation to my request under the CCA 1974 and their failure to comply.They responded on or about the 5th February dated 2nd February informing me that they had fulfilled their obligations under this request and enclosed further copies to which i have referred to in point 4. There was no reference to their letter dated 18th December about any unknown account that their Customer Relations were dealing with.

I shall contend at trial that this complaint was never resolved.

8.On the 7th February I received further correspondence from the Claimant dated 4th February 2009 requesting that I agree to grant a voluntary charge on my property.This was declined. ( Exhibit 18)

9.On the 10th May 2009 I received LBAs from the Claimants Solicitors dated the 6th May 2009 informing me that I must respond within one month to avoid legal proceedings and the second to contact them immediately.I responded and wrote back to inform them their Client was in default under the CCA1974 the account was in dispute and also that they was in breach of the OFT Debt Collection Guidance and the DPA 1998. (Exhibit 19/20/21)

10. I received a County Court claims from Northampton CCBC issued 1st December 2009 as referred to in my point 1. I requested from the Claimants Solicitor under CPR 31.14 dated 15th December 2009, for the disclosure of the documents referred to and implied in the Claimants P.o.C (Exhibit IB 23)

They responded on the 21st December 2009 and enclosed further copies referred to in exhibit IB9 and further stated that they had no duty to provide a Default Notice/Termination Notice as they were the assignee and not the original creditor.

11. I therefore was left with little option but to submit an holding defence as the Claimant had failed to furnish the requested documents and frustrated my attempts to submit a particulirsed Defence.Having received an AQ the case was transfered to my local County Court.

This was followed by an Order of Stay,as requested by the Claimant, until the 9th March in an attempt to settle or narrow the differences within the claim and resubmit AQs by the 23rd March 2010.

12. I wrote to the Claimants Solicitors on the 3rd of March 2010 requesting further information under CPR 18.1 they responded on 16th March 2010 in response to the stay and my request and enclosed documents marked (Exhibit IB 26/27/28/29) and repeated IB 8/9/11.

13. On the 8th April I received a further Order of stay dated 6th April stating the claim would be stayed further until 18th may 2010 for further attempts to settle and resubmit AQs by the 4th May 2010.

14. On the Courts own initiative I received notification dated 17th May 2010 of a CMC to be held on the 29th July 2010 to which I attended.Draft Directions was received from the Claimant Solicitors dated 6th July 2010.

15. On or about the 7th August I received a Notice of Allocation.Case was to be allocated to Fast Track and further directions listed.Standard Disclosure to be exchanged simultaneously which I filled 15th August 2010 to the Claimants Solicitor as per order dated 17th August 2010.The claimant eventually exchanged after I informed the Court of the Claimants further frustrations.

16.I wrote to request all documents as per the Claimants N265 on the 20th August and again also requested sight of the Default Notice Notice of Assignment and Deed of Assignment.

I received a request from the Claimants Solicitor dated 20th August for inspection of my proposed documents to which i complied 25th August 2010.

The Claimant failed to disclose my requested Documents from their N265 and requested an order from the Court for their compliance by the the 3rd September 2010.They responded on the 5th September again excusing themselves but they had sought copies of Default Notice and Notice of Assignment from the Original Creditor or Assignor.They also stated in a further attempt to avoid their responsibilities by stating they did not have the documents and would remind me that the standard of proof in Civil Claims is the balance of probability. (Exhibit IB30)

Along with more duplicated documents they did however provide a copy of Receivables agreement between Cabot (the Claimant) and Goldfish (The Assignor) (Exhibit IB 31)

17. I have since made further request by way of a D.S.A.R on the 6th September 2010 to Cabot the Claimant and also requested again vis a vis CPR 18.1 from the Solicitor further information allowing 7 days notice in preparation for this Witness Statement.This request was signed for by their staff on the 10th September 2010 and to date this has not been complied with.

18 The Claimant has responded to the S.A.R request dated 12th September and has provided information via encrypted CD data I have since responded and requested it on paper form.

Simply look at your defence and convert it into your own words (no case summaries/refs) tell it as a story .Copy to Claimants Sols copy to Court

[shirei12]

Luckily I have found all I need saved on my PC so just a matter of putting it in date order. Will post on the 7th with next day delivery to sols and and hand delivered to Court at the weekend.

[AndyOrch]

iii. Everyone (including the parties themselves) who is to give evidence must make a written statement and send it to every other party and to the Court office by no later than 4pm on 88 March 2011.

 

You have time then if that date is the 8th and its the DJ order, normally 7 days before but hey ho!!!

 

Regards

 

Andy

 

PS Do you want me to vet it before submission?

[shirei12]

"You have time then if that date is the 8th and its the DJ order, normally 7 days before but hey ho!!!

 

Isnt it 7 days before hearing? This hearing is not until April.

 

PS Do you want me to vet it before submission?

 

If I manage to complete by Sunday,Yes Please.

[AndyOrch]

Right Im with you Shirei thought the hearing was the 8th.

 

Andy

[shirei12]

Do defences need to be included in the bundle???