CPR COURT hearing tomorrow, just had banks defence.

[Its WAR]

My application under CPR for a CCA is to be heard tomorrow. I have just received the witness statement from Halifax sent to my work email. But I cant copy it here.

The main points seem to be.

1. I sued Halifax plc and not Bank of Scotland

2. It advises that I have previously made a section 78 request and they have fuliffiled it by sending reconstructed items and a copy of my application form.

3. The application form would have had the prescribed terms on the reverse and theser are on the reconstructed document.

4. My claim sets ot 3 grounds for a cause of action, but these are without merit.

5. Improper execution, but they say I have not provided any particulars as to the basis which I allege the Agreement is improperly executed.

6. Furthermore as the Agreement is dated prior to 6 April 2007 in the event, which is deniued, it was not properly executed in accordance with section 61 (1) of the Act, the Court could not make an enforcement order pursuant to sections 127 or 142 of the Act in favour of the bank. In these circumstances, it is the banks position that the court would have no power to make a declaration pursuant to section 142 of the Act and any action purp[orting to seek such a remedy would be without merit.

7. The applicant suggests the bank has levied charges which it is not entitled to. But as the bank has sent copies of the T&Cs, I should therefore have sufficient information as to those charges to plead a case on them.

8. Finally, I have alleged the bank has registered or threatens to register defaults and to commence legal action in breach of s.78. Yet, my account is not in arrears and the bank at this stage does not intend to commence legal action. The bank has complied with s.78 but even if it hadnt, it could still register defaults etc McGuffick v RBS.

9. I have therefore failed to particul;arise any valid claim.

They then list Criteria for pre action disclosure. pursuant to CPR 31.16 (3).

They then list reasons why I have not met that criteria.

10. The respondent is a non existent entity.

11. I have said that disclosure will fairly dispose of anticipated proceedings because of a cards on the table approach. Yet I havent provided particulars as to the nature of the anticipated proceedings.

12. The bank has complied with my s.78 requerst and is not obligated to provide further documents.

13. I have asserted that pre action disclosure will assist the dispute to be resolved without further proceedings being necessary because once disclosure is given, each party can see the strengthws of their respective cases. But that is not a criteria provided for by CPR 31.16.

14. As the bank has provided documents which I am entitled to under s.78, I have not set out any basis upon which I am entitled to documents beyond what has already been provided, nor why such disclosure would resolve matters without proceedings being necesary.

15. Finally, I have suggested the pre action disclosure will save costs because full proceedings may not be necessary. However, the banks position is that there can be no subsequent proceedings in respect of which the disclosure can properly be sought and therefore the application does not save costs, but merely increases them.

It then goes on to state:

16 that s.78 does not entitle me to the Agreement in its original form, and I have not particularised any legal basi9s upon which I am entitled to a copy of the Agreement in the form requested by my CPR request.

17. The bank is unable to provide a scanned version of the signed agreement in its original form. However the prescribed terms would have either appeared on the reverse of the Agreement or in subsequent pages stapled to the application form. The content of the T&Cs applicable at the time has been provided.

18. I have therefore received sufficient documentation if I were wishing to plead a claim.

It then goes on to deal with the costs.

19. Pursuant to CPR48.1(2) As a general rule the cost of disclosure falls upon the party requesting it and can only be reversed if there has been unreasonable conduct on the part of the respondent. The bank does not consider it has been unresonable as it has not refused to provide documents and has acted in a timly manner to mt CCA requests. I should not have made the CPR application as I have already received the documents which s.78 says I am entitled to.

Conclusion.

20 The bank asks that my application does not suceed and costs be awarded to the bank. for the following reasons:

21. The rquirements of CPR31.16 have not been met: I have failed to identify any valid cause of action in which subsequent proceedings would be brought. I have failed to identify which 'anticipated' proceedings could be avoided by the order being sought. The bank has complied with its obligations under s.78 and I have not set out any legal basis upon which I am entitled to further disclosure before the issue of proceedings. The application is without merit and has increased and not saved costs.

They are claiming barrister advise (not sure if they will attend) of £340.

My other thread, has had limited response to the hearing itself so I have used this new thread with a more suitable title.

I think I am stuffed. Especially as it sems I have only had a few late payments on my card and am now just got back up to date with my payments. But I will probably be defaulted soon. Maybe I have been premature in trying to get my Agreement. I have very little time to understand this case now.

How do I respond to their points. Should I get it adjourned?

(i cant get back to my computer before 10:30 tonight). What do I do...PLEASE.

[MandM]

bump

[postggj]

I sued Halifax plc and not Bank of Scotland

 

 

OR ROYAL BANK OF SCOTLAND

PLEASE ELABORATE

 

HBOS

 

HALIFAX BANK OF SCOTLAND

 

IN THE CCA/CPR REQUEST#

 

DID YOU ASK FOR A TRUE COPY OF THE AGREEMENT

[Its WAR]

My application was against Halifax plc, but their witness statement said (as the respondant) Bank of Scotaland (sued as Halifax plc).

 

The requests asked for true copies.

[postggj]

well if the request was for true copies,

they are stuffed

[michellej]

I think the court will order bank to disclose documents/agreement if CPR31.16 was sent correctly,... obviously their have to lodge some defence , and by the sounds of it trying scaring tactics eh ,... their have to comply , and if not would be looking at taking legal proceedings to freeze the account till an enforceable agreement is provided proving you are liable for the debt ,.. if everything is above board with your agreement , why? are the lenders sticking they heels in? ,.. why not produce the legal agreement , which surely will be a lot easier and a lot less hassle then writing replies and sending barristers to court ,.. defend a request what the courts will hopefully order disclosure ,..and not forgeting costs ,.. obviously agreement is either not in place or properly executed , can be no other reason ,.. as like I say if nothing wrong with agreement then surely easier to provide it at time ofasking , and take the smile off our faces ,... best of luck for court ,

[postggj]

They Can Send A Reconstructed Agreement Under S77 To S79 Cca Request

 

But A Request Under Cpr Is A Different Ball Game And Asking For A True Copy

 

They Are Stuffed

 

Keep Thinking

 

Cpr

True Copy

Non Compliance

 

Dont Go Off Subject

[Its WAR]

My biggest fear is that they say I have no reason to ask for one as there is no legal action anticipated.

 

Also, I would like to have a reply to each of their defence points. But I have very little except arguing that they have ignored my many requests for months, and now, only 24 hours before the hearing, do I get any response at all, which says they dont want to let me see it, if it exists. They claim over £300 in barrister costs, surely they should simply send me the agreement. Now, I have had no time to prepare a defence to their points and would clearly trip up if I tried to deal with each point without specific replies rather than just appealing to the judge, please order them to produce the agreement.

 

My strategy must be to argue why would they be so defensive and bearing costs to avoid sending the agreement if they believed it was safe. How unfair it would be if I had to be defaulted and sued before I get to see one. How by seeing the agreement I would be better placed to settle the matter, if it transpired the agreement was unenforceable.

 

Or I ask for an adjournment so that I can prepare a proper defence.

 

The thing is, I have an earlier hearing (20 minutes sooner) against MBNA for the same thing, but they have not sent a defence or anything whatever. So I get a warm up first.

 

It might be a good day, with two orders or a bad day. I feel very unprepared and still undecided how to deal with it. I feel that I should just persuadfe the judge that as an ordinary person, I should receive the protection of a properly formed agreement and the banks should readily comply to a request. Cross my fingers and hope the judge agrees, afterall, whats the problem if the Agreement is found to be in good form?

 

Anyway, i am too tired to spend the next hour or two trying to understand it. So I will try again in the morning.

 

One niggling question. Does their costs claim of £300 seem a bit low? Ok for receiving advise, but would that really cover a barister attending the hearing? Or will I be alone? Any bets?

Edited December 23, 2009 by Its WAR

[postggj]

well quote the cca at them

 

you can make a request anytime you want

 

that includes a true copy

 

REMEMBER

 

YOU ASKED FOR A TRUE COPY

[Its WAR]

I must go to bed. Thanks, so far.

[MandM]

My biggest fear is that they say I have no reason to ask for one as there is no legal action anticipated.

 

Also, I would like to have a reply to each of their defence points. But I have very little except arguing that they have ignored my many requests for months, and now, only 24 hours before the hearing, do I get any response at all, which says they dont want to let me see it, if it exists. They claim over £300 in barrister costs, surely they should simply send me the agreement. Now, I have had no time to prepare a defence to their points and would clearly trip up if I tried to deal with each point without specific replies rather than just appealing to the judge, please order them to produce the agreement.

 

My strategy must be to argue why would they be so defensive and bearing costs to avoid sending the agreement if they believed it was safe. How unfair it would be if I had to be defaulted and sued before I get to see one. How by seeing the agreement I would be better placed to settle the matter, if it transpired the agreement was unenforceable.

 

Or I ask for an adjournment so that I can prepare a proper defence.

 

The thing is, I have an earlier hearing (20 minutes sooner) against MBNA for the same thing, but they have not sent a defence or anything whatever. So I get a warm up first.

 

It might be a good day, with two orders or a bad day. I feel very unprepared and still undecided how to deal with it. I feel that I should just persuadfe the judge that as an ordinary person, I should receive the protection of a properly formed agreement and the banks should readily comply to a request. Cross my fingers and hope the judge agrees, afterall, whats the problem if the Agreement is found to be in good form?

 

Anyway, i am too tired to spend the next hour or two trying to understand it. So I will try again in the morning.

 

One niggling question. Does their costs claim of £300 seem a bit low? Ok for receiving advise, but would that really cover a barister attending the hearing? Or will I be alone? Any bets?

 

Does that not basically outline your defence? Convince the judge of what you're saying here as your opening assault! Did they not issue their defence by e-mail THE AFTERNOON before. Then follow up with what post has suggested?

 

If you get no more by the morning then i'd go on the attack!!!

 

I wish you the very best of luck and will look in tomorrow to see how you faired.

 

M

[michellej]

good luck for today ,.. think it will be adjourned to give you more time to defend , as can not contact the day before and expect that to be reasonable, plus they will not provide agreement to either prove you are liable for the debt ,... surely a judge will see your points , and the banks lack of interest in your small request , A request they wil need to show the debt is yours ,... and what do they say , no agreement no debt ,.. fingers crossed best wishes

[michellej]

Hi , how did today go , hope all went well look forward to hearing what the judge had to say , best wishes

[Its WAR]

Here goes. First things first.....Trying to get a true copy of your agreement is very dangerous and the info on this site, whilst encouraging and gets you to follow the advice, does not give anywhere near enough detail as far as what goes on in the court room. The hearings were really difficult and almost a total disaster.

 

I had two hearings one after the other. The first with MBNA. All previous requests for a CCA had been totally ignored and no correspondence from them at all. I attended the hearing expecting it to be me and the judge. Only to find a London barrister had travelled down, and as I walked into the waiting room, gave me a witness statement and documents. I was therefore suddenly looking at a costs application (if I were to lose) of £2000. The judge was not happy with them and immediatly proceeded to pursuade me to adjuorn and give careful thought regarding the whole affair. The barrister clearly wanted to have the case heard. All of a sudden the risks seemed too high, and I happily accepted the advise to have the adjournment. In the bundle I was given, there was a copy of the online agreement which shoed it to be[post 2007 and reconstituted terms, which the barrister indicated was the best they could do. (so maybe I have what I went for, an acknowledgement that they have nothing better. The judge was not happy that a costs application would be made, but may not have been necessary had the documents be given to me when I first asked. And the costs issue has been reserved and yet be decided and still hang in the balance. Anyway, the bank was happy to employ a £2000 barrister to try to get the judge not to make an order for disclosure. How is that fair? Especially as the risks are now too great to continue (maybe thats why they use an expebnsive barrister having to drive all day etc, rather than a local one. Local ones dont add much to the risk. So the case is now adjourned probably until Feb. I havent yet read their bundle.

 

Then its was back into the waiting room, where a phone call into the court advises that the barrister for Halifax was stuck in traffic and would be late. So another nervous wait thinking of another £2000 costs issue. Luckily, the barrister arrived ten minutes after the hearing should have been over. The judge was not happy and was also concerned that the bundle had again only been given to be by email late the previous afternoon. He repeated his adjournment advise for me to very carefully consider my next step. I explained that it appeared the bundle confirmed that Halifax had nothing further they could disclose, and I therefore had what I wanted. I again argued that had they provided the docs in reasonable time, I would not have made the application and/or could have withdrawn the application and not be faced with the costs.

 

So, in short, a difficult day with limited success and a costs issue that will no doubt get in the way of negotiating.

 

I would add that the judge appeared that he would not have taken any quarter as far as my being unprepared or incapable of putting up a real argument to each and every point raised by the barristers. Simply saying they had not complied with my CPR would not have done.

 

So I guess the need to have the adjourned hearing heard, is probably no longer required and I should go for having the agreements declared unenforceable or drop the matter.

 

As for the future of these matters, we must all be aware of the risks versus rewards, the time required to get a firm grip of the issues and the ability to speak up with the right words. My fear is that most of us will be under educated in these matters. It maybe better not to be preemptive but simply wait until they sue you, then you have nothing to lose as far as costs are concerned (under £5000), and their failure to cough up a correct agreement will work in your favour.

Edited December 23, 2009 by Its WAR

[postggj]

i still say they only have reconstructed agreements

was the online applicatioN theY produced out of the hat (BARSTEWARDS}

LEGIT OR WAS THAT TO A RECONSTRUCTED AGREEMENT

[Its WAR]

Who knows whether they were real? But its certainly agreed that they were all reconstituted. I forgot to add. Halifax barrister produced my unreadable application but also a readable one, from somebody else just to show the judge what mine would have looked like. The only difference being that person had a £125,000 income.........name and address and all. Maybe I should let him know.

[postggj]

Sending A Pm

[Its WAR]

I have now received a date for adjourned hearing to be heard. Of course, I dont need it to go ahead as I now have confirmation that the Halifax have given me everything they can.

 

The question is, if I withdraw my claim will the court award costs to the bank (£300) and not award my costs £75?

 

Also, wht is the future of progressing these CCA claims in the light of the Manchester hearings?

[Its WAR]

The adjoiurned hearing is a copule of weeks away. Halifax maintain they fulfilled their obligation under cca by sending the reconstituted docs. They are saying the cpr request for a true copy must fail as the reconstituted copies are true copies and in any case, I cant win a case for unenforceable agreements .

 

I need to discontinue because I cant see any point in attending the hearing as I do have the reconstituted agreements and to win the costs issue I must argue successfully that the cpr route was worthy to take.

 

This excercise will cost me £345 if I discontinue as tye judge will no doubt award their costs. But I cant see the rewards are there to fight for, and risk further costs. I think maybe I have been caught up in the hype of trying to get the agreements and maybe I shouldnt have bothered. Just what the banks hope for I guess, and thats why they make it difficult. I suppose I just cant afford the fight and my brain hurts.

 

But I coukld still do with a get out of jail free card. What should I do to deal with discontinueing and the costs issue?

[postggj]

Request From The Judge Under Cpr To Inspect The Original Agreement

 

Its Rollocks What They Are Saying

 

Please Confirm

Do These Reconstructed Agreement Have Or Dont Have Your Signature On Them

[Its WAR]

The only thing with my signature on is the application form. Halifax say the reverse has the prescribed terms. The reconstructed agreement is claimed to have those terms and is a true copy. And in any case, even if the agreement is not executed correctly, the court could not make an enforcement order pursuant to s127 or 142 , therefore the case has no merit and should be struck out and costs awarded to the bank.

 

Also I have not met the criteria required for CPR31.16.

 

I am just not convinced I have a good enough argument and am thinking it better to discontiune and suffer the banks costs £345 and lose mine £75 rather than risk these being doubled at the hearing if I lose.

 

Its just that the advise seems so simple as they havenet complied with my cpr they are stuffed. It isnt that simple at all and I need to argue or give up. At the moment I want to give up.

[diddydicky]

when did you sign the agreement (is it prior to May 31 2005?

 

if so please type look for the section that says

 

YOUR RIGHTS

 

or

 

IMPORTANT READ THIS CAREFULLY TO FIND OUT ABOUT YOUR RIGHTS

 

which one is quoted?

[Its WAR]

The agreement was 2001.

 

There is a photocopy of 8 pages of Haliax Credit Card Conditions of Use, the last section has a heading YOUR RIGHT TO CANCEL

 

Whats your point?

[diddydicky]

no, not the "your rights to cancel"

 

look through the other T & C's and you will see one headed in one of the two ways i described above

 

ill tell you when youve found it

[diddydicky]

have you found it yet??