Storecard Claim served - what now? ** SUCCESS**

[Pumpkinhead]

Here is my latest version of the Witness Statement.

 

Anything in BLUE is a comment which will not be included in the finished statement.

 

Anything in RED is an amendment to the first draft statement I posted.

 

Urgent comments support welcomed as I must get this finished by end of tomorrow (Sunday) so I can take it to the Court on Monday as deadline is Tuesday.

 

Joint Witness Statement

 

In the *************

county court

Claim number **********

 

Between

************* - Claimant

and

xxxxxxxxxx - Defendants

 

 

JOINT WITNESS STATEMENT OF

######### & XXXXXXXXXX

 

We, ####, of ##### will say as follows

1. On (DATE) we completed in-store, a joint application form for a XXXXX Account Card being a credit agreement regulated by the Consumer Credit Act 1974. Our application was approved and we were subsequently both issued with a credit token in the form of an Account Card. Terms and Conditions relating to the credit agreement were detailed on the reverse of the application form. Whilst we do not have an original copy of said agreement number XXXXXX, we have recently obtained a copy and recognise it as containing our personal information and signatures. We do not recall being sent any other terms and conditions or that the terms and conditions were discussed with us before signing the application form in- store.

2. The main benefit to us from having entered into this credit agreement was the opportunity to obtain goods and pay for them by monthly instalments, as opposed to having to pay the total amount due immediately purchases were made.

3. All went well until (DATE 2009) when we begin to experience financial difficulties. On (DATE) we wrote to the Claimant advising them of this and asking for time to pay as we were already one month in arrears. We received a reply dated (DATE) giving us until (DATE) to submit a repayment proposal. However, we unwisely did not submit a repayment proposal to the Claimant at this time as we felt that our financial situation was likely to ease and by the end of (DATE) we were three months in arrears.

4. It did not come as a great surprise when on (DATE) the Claimant served us with a Default Notice under Section 87(1) of the Consumer Credit Act, pursuant to a breach of a regulated agreement for credit.

 

4.1 The nature of the breach was stated as the failure of the Defendants to pay three instalments amounting to £XXX within 14 days of the monthly due dates.

 

4.2 The action required to remedy the breach was for payment of the total amount of the instalments in arrears to be made to the Claimant by (DATE).

 

4.3 The Default Notice was accompanied by a letter from the Claimant (copy attached) which requested a payment of £xx in addition to the arrears, being the monthly payment due for (MONTH). The letter also advised us that our Account Cards would no longer be valid and should be destroyed as we had failed to comply with the terms of the Credit Agreement.

(SHOULD I POINT OUT HERE THAT THE LAST PART OF THEIR STATEMENT AMOUNTED TO AN UNLAWFUL TERMINATION OF THE ACCOUNT AS I HAD NOT BEEN ALLOWED TIME TO REMEDY THE BREACH)

 

5. On (DATE) the Defendant (Name) telephoned the Claimant’s store and made a payment of £xxx by debit card, being the total of the instalments in arrears as required by the Default Notice together with an additional payment of £xx as requested in the Claimant’s accompanying letter and detailed in point 4.3 above. This action therefore remedied the breach detailed in the Default Notice before the deadline of (DATE) was passed.

 

6. We subsequently received a letter from the Claimant dated (DATE) together with a monthly statement of account (copies attached). The letter thanked us for our payment of £xxx on (DATE) and confirmed this had cleared the arrears on our account. The letter then went on to say that recovery action would be suspended on the strict understanding that the required monthly payments were received by the statement due dates each month and that should payments cease at any point the Claimant would immediately resume recovery action for the full balance. The letter continued by reminding us that the Account Cards were no longer valid and should be destroyed.

(SHOULD I MAKE REFERENCE HERE TO THE FACT THAT ANY ATTEMPT TO RESUME RECOVERY ACTION WITHOUT A FURTHER DEFAULT NOTICE WOULD BE UNLAWFUL OR INVALID ETC)

 

6.1 The statement of account dated (DATE) confirms our payment of £xxx as having been made on (DATE) and therefore full payment of the arrears had been made before the deadline given in the Default Notice.

 

5. Unfortunately, our financial position did not improve as anticipated and in fact worsened. By (MONTH) we were struggling to pay any bills at all, including monthly payments due to the Claimant. It was an extremely stressful time for both us but especially the Defendant (NAME) who suffers from generalised anxiety disorder. Therefore, after taking advice, we wrote to the Claimant on (DATE) explaining the reasons for our financial difficulties and asking them to accept a reduced monthly payment of £XX. The amount of this reduced monthly payment was calculated as a percentage of the total funds we had available after deducting our monthly essential expenses from our income, divided between all our creditors in direct proportion to the level of debt we had incurred with each of them. We were advised that the formula we used was considered as a standard method of calculation in such circumstances. We also supplied the Claimant with a copy of a personal budget sheet (copy attached).

 

6. We did not receive a reply but began to make monthly payments at the reduced amount we had offered in our letter dated (DATE).

 

7. We were shocked to subsequently receive a notice of intended legal action from the Claimant’s solicitor dated (DATE) demanding that £xxx, being full payment of the outstanding balance of the Agreement be received by them by (DATE) or failing this the Claimant would commence court proceedings for the recovery of that amount plus interest, fees and costs (copy attached).

 

8. On (DATE) we sent a letter to the Claimant’s solicitor (copy attached), repeating our request for their client to accept our offer of a reduced monthly payment for a six month period. We did not receive a reply.

 

9. On (DATE) we both received copies of a Claim Form Number XXXXX claiming £xxx, £xx in interest and costs. Particulars of Claim were also included.

9.1 The Particulars of Claim contain a Statement of Truth as follows: “The Claimant believes that the facts stated in these Particulars of Claim are true.” We would respectfully point out to the Court that due to the fact we had remedied the breach contained in the Default Notice in a full and timely manner the Claimant’s Statement of Truth is totally inaccurate, thus causing the Particulars of Claim to be untrue. We have evidence in the form of our bank statement and a letter and a statement of account from the Claimant that the arrears had been paid in full before the date given in the Default Notice.

9.2 Furthermore under point 3 of the Claimant’s Particulars of Claim it is stated that the Claimant terminated the Agreement on (DATE). We wish to address this point further a little later.

 

10. At this point we sought advice and it was brought to our attention that the Claimant’s action was unlawful on two counts namely:

10.1 that demanding repayment of the whole outstanding balance of the Account was in direct contravention of section 89 of the Consumer Credit Act (Compliance with Default Notice) which states that “If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88 (1) (b) or © the breach shall be treated as not having occurred.”

10.2 and, that the Claimant’s action of terminating the Account (see points 4.3 and 9.2 above) was in direct contravention of XXXXXXXXXXXXXXXXXXXXX (Need to put which piece of legislation this refers to in here). Termination of a credit agreement by a Creditor occurs when (need to fill this bit in yet and refer to their telling us the account cards should be destroyed and were no longer valid as being considered as termination and asking for the full balance possibly on back of defective DN also termination) Refer to unlawful rescission.

 

THIS AS FAR AS I’VE GOT REALLY BUT HAVE ALSO COMPOSED FOLLOWING 2 PARAGRAPHS FOR USE AT END OF STATEMENT.

I NEED TO ADD IN MORE CASE LAW AND LAW STUFF YET.

 

10. I sent a letter dated 19 January to the Claimant’s solicitor making a request under CPR31.14 for the documents referred to by them in the Particulars of Claim. Despite sending a reminder email and letter to them dated 29 January, to date I have only received a partial copy of the Agreement and a copy of the Default Notice dated (DATE). The Claimant has therefore failed to comply with their duties under CPR31.14 and provide me with the other documents they refer to in the Particulars of Claim, namely a full copy of the agreement, the termination notice and the statement of account letter before action. They also failed to provide me with an additional period in which to submit any defence or to advise me that they required more time to comply with my request. This has therefore left me, as a litigant in person, somewhat disadvantaged. (SHOULD I PUT THIS BIT IN?)

11. In summary, I respectfully ask the Court to issue a summary judgement in my favour on the basis that the Claimant has unlawfully terminated the agreement and also request them to award costs to me to cover both fees spent and time taken to deal with this claim and additional damages for damage to my credit reputation (NOT SURE ABOUT THIS LAST BIT)

[gh2008]

I'll reply & help tomorrow - got a humdinger of a migraine today

[Pumpkinhead]

Hope you feel better soon!

[gh2008]

Thank you - Feeling almost human again today

 

I've copied you post from above and I'll post it back on here later to see what you think.

 

Is it the AQ that's due in on Tuesday?

If so, we've got to sort that as well, but that's easy a straightforward, especially once you've made the application

Edited February 14, 2010 by gh2008
about the AQ

[gh2008]

It's your defence that has to be in on Tuesday - we MUST NOT miss this

 

The defence will be easy - a straightforward embarrassed because the claim isn't particularised & deny everything.

[Pumpkinhead]

I'm not 100% sure what the Allocation Questionnaire really is. All I've received so far is the claim form. I returned the Acknowledgement of Service and said that I intend to defend all the claim. I know that I have to get my defence in before Tuesday this week.

 

Instead of filing a defence as such I will be putting in an N244 application for summary judgement.

 

Is the AQ something else I might be sent at some later point?

[Pumpkinhead]

Here are copies of the front and back of the agreement. I think its OK. It was signed by both of us and the creditor. I believe all the required T&Cs are there and that it is in the prescribed format, but please review for me.

 

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Edited February 14, 2010 by Pumpkinhead

[Pumpkinhead]

And here is the DN. It is dated 9 Oct, but I have the envelope which is franked 1st class and date stamped 12 Oct. It arrived with me on 14 Oct giving me until 27th Oct to rectify. This was insufficient time but probably irrelvant because I paid the arrears in full on the 26th Oct.

 

My other thoughts about the DN are that possibly the phrases IF THE ACTION REQUIRED BY THIS NOTICE ........ and IF YOU DO NOT TAKE THE ACTION REQUIRED are not adequately highlighted in line with the the regulations relating to DNs.

 

Also point 1 says the provision breached of the agreement is Clause 7. I imagine they are referring to the actual Credit Agreement nothing else. If so, this does not relate or tie up with Clause 7 of the T&Cs to be found on the reverse of the application form. On the T&Cs Clause 7 related to Payment Protection Insurance.

 

Another problem with this DN I believe to be the fact that it does not contain the Claimant's registered office details or their registration number, only their name and address. Interestingly the address is different to the one on the storecard application form but I know this address to be their head office.

 

Finally at the bottom of the DN note the copyright information. I wonder if the Claimant actually has express permission from the CCTA to use it??

 

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[Pumpkinhead]

So GH are you saying I don't need to get the N244 in by Tuesday just submit an embarrassed defence?

 

Doesn't this leave it open for them to go for a summary judgement and wouldn't I then have to have their permission to amend/add to my defence?

 

I am getting muddled up now as to what things I have to do. Can you confirm that I must:

1. enter a defence of some sort before Tuesday

2. lodge the N244 application for a summary judgement AFTER this?

 

I've put in an Embarrassed Defence before for something else, so can probably put that together easily enough.

[Pumpkinhead]

I also notice that the registered office address IS NOT the address as stated for the Claimant on the DN.

[Pumpkinhead]

Here's the letter which accompanied the DN.

 

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[Pumpkinhead]

Hello anyone??? Can anyone else give me some help with this please as well as GH. Getting panicky

[gh2008]

Basically this is what has happenned

OP failed to repay

claimant issued DN

OP complied with dn on time

claimant terminated anyway!!!!!

and now issued claim for full amount outstanding etc

 

OP is making a application for Summary Judgement against the claimant. SJ rather than SO as it gets rid of the case forever rather than leaves it in limbo

 

I'm helping with the WS and this is the conclusion for the WS so far

CONCLUSION

 

The Consumer Credit Act is quite clear with regards to Defaults and Termination

s. 87. Need for default notice.

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security

88. Contents and effect of default notice.

 

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) 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;

© 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.

However s.89 clearly states

89.Compliance with default notice.

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

In this case the Default Notice upon which the claim is relying was fully complied with, before the date specified and therefore the breach had to be treated as having not occurred.

 

The claimant, in refusing to allow the continued use of the credit token was in repuditary breach of the agreement and the subsequent termination of the account was unlawful.

I just need the killer last paragraph showing why the claimant can neither now or ever claim for another penny.

Therefore summary judgement awarded against the claimant together with costs to be summarily assessed and claimant should arrange for the removal of all adverse credit reports.

 

 

help.... brain fuzzy today

Edited February 14, 2010 by gh2008

[gh2008]

Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

[gh2008]

revised WS attached - what do you think?

I haven't posted it here as it will just make the thread more confusing

 

Post it in full, for reference once the conclusion is sorted

pumpkinhead ws.doc

[Pumpkinhead]

Thanks GH. I am editing the WS now with the exact names, dates, amounts etc. When it's finished and we have the conclusion I will post up a copy minus personal information.

 

Do I need to put an embarrassed defence together as well?

 

Yes, witness statement now looking good. Just need that last bit.

Edited February 14, 2010 by Pumpkinhead

[gh2008]

Is the POC anywhere on the thread?

[gh2008]

This is the part of CPR you are using

Grounds for summary judgment

 

24.2

 

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue;

 

We need to succinctly word why the claimant cannot win.

[Pumpkinhead]

No POC not posted up. I will photocopy it in and upload it

[Pumpkinhead]

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[The GodMother]

Erm.

 

I thought tht ppl had till midnight or even close of business on the day to pay the sum due. So the company cannot terminate on the last day of the DN as they are not in breech till open of business or 00:01 the next day.

 

Sorry ment to put this is in relation to POC point 3.

[gh2008]

ok, so no embarrassed defence, we can do a proper one

 

The DN date does correspond to the DN you've been talking about doesn't it?

[gh2008]

Erm.

 

I thought tht ppl had till midnight or even close of business on the day to pay the sum due. So the company cannot terminate on the last day of the DN as they are not in breech till open of business or 00:01 the next day.

 

Sorry ment to put this is in relation to POC point 3.

 

Best bit is - THEY PAID !!!! lol

[gh2008]

It is quite bizarre .......

They complied fully with the DN (and more infact as they also paid the next month's installment in full as well)

 

and the STILL TERMINATED - actually they terminated on the day of sending the DN as they said in teh accompanying letter that they had to cut up the card etc

 

Pumpkinhead is going for Summary Judgement and we need a killer closing paragraph to the conclusion of teh Witness Statement in post #63

 

any ideas?

[The GodMother]

I know they did l have read the thread but l thought they piad 2 days b4 the DN was up.

 

Also id paid on the 26th then they have admitted to termination the acc early which leaves them with only the arrears due at time of DN and nothing more so the letter saying she had to pay a further months payment, £41.00, on top of the DN payment would be illegally gained and could be returned with interest.