series3 v MBNA/Optima

[Echodale]

Ahh the infamous Dianne Powell witness statement. I had one of those too (well two in the end). You'll probably find even though she is not a lawyer a lot of her WS quote the law and makes her sund like a legal expert, (maybe someone else writes it she just puts her name to it), but also a lot of what she says is hearsay. I had two WS from her the first one for the summary judgement hearing she swore that my DN had been sent first class Royal Mail. At the SJ hearing I suggested that might need to be proved as I had kept a record and it was UKMail. That was the crux of my argument for SJ not being possible as at trial they would need to prove the DN was not defective. For the hearing Dianne swore that the DN was sent UKMail, I suggested to the solicitors that I would argue the witness was unreliable on the grounds she had sworn two completely different things. The solicitors and I "settled out of court" in the end.

[Series3]

Should I suggest at court that her WS is hearsay...this if a SJ application.

can they just dump another statement on me the day or so before?

[Echodale]

The Directions for the SJ normally say something like both sides to file witness statements and evidence no less than 7 days before hearing. Even if it did not you could argue that as a litigant in person the statement was served too late for you to research. You could argue hearsay if she is saying the DN notice was delivered on a particular date, I argued hearsay as she could not prove that o be the case. Also if she is saying that the DN was sent first class but has not evidenced that you might be able to argue this as hearsay too. Remember SJ hearing means the claimant is arguing you have no realistic chance of defending the claim

[Series3]

her statement was on about the agreement being as it should be or what it should have had...she doesn't even mention the DN...they are relying on amex v Brandon..that I believe is being appealed...so maybe an adjournment till after the appeal

I hope someone could confirm this for me..

I have clicked the triangle and hope the site team may be able to help before Friday...lol

[vjohn82]

Regarding the Amex case they should not be relying upon a judgement being appealed.

 

Always argue hearsay where the person makes a statement they could not possibly have been witnessed to.

 

"" The claimant avers that CPR PD 17 paragraph 7.3 only requires the original agreement to be produced where it is reasonable to do so. It is not reasonable to require the Claimant to keep original agreements from 2001 due to the sheer volume of paperwork that would be required."

 

You need this:

 

Money Laundering Regulations 2007 No. 2157 15th December 2007

 

Record-keeping

 

19.—(1) Subject to paragraph (4), a relevant person must keep the records specified in paragraph (2) for at least the period specified in paragraph (3).

(2) The records are—

(a)a copy of, or the references to, the evidence of the customer’s identity obtained pursuant to regulation 7, 8, 10, 14 or 16(4);

(b)the supporting records (consisting of the original documents or copies) in respect of a business relationship or occasional transaction which is the subject of customer due diligence measures or ongoing monitoring.

(3) The period is five years beginning on—

(a)in the case of the records specified in paragraph (2)(a), the date on which—

(i)the occasional transaction is completed; or

(ii)the business relationship ends;

 

 

Sounds like you are on the ball with the other things.

[Series3]

thanks for that vjohn.

Is there a copy of the CCA on the site..it might be worth printing out and highlighting some things in it for court.

is there any case law I should read that may help me?

one more...

the terms and conditions are NOT the ones that applied to the card at the time of signing..do they have to give me a copy of them?

I'm searching the site/threads for information and confirmation on the points I raised.

is there conformation about the amex case being appealed?

 

not too on the ball, they are just my thoughts for arguing...still need to find the law/proof of what I want to say

[Series3]

is it too late to ask for costs or if I send a letter in the morning to court and optima?

can I ask at the hearing?

 

any other help with comments in red (post 125) would be gratefully received.

just conformation..what law should I use to quote from?

[Docman]

series3

 

You have a good case and put it forward well. I wouldn't push the S78 point in view of the Carey v HSBC decision and I'm also not sure about the faulty DN. Bank holidays are excluded for service but I think they will count as part of the '14 clear days' required. Again don't push this point.

I think the main points to push are

(1) this is an SJ application but there are clear points of dispute which need to be dealt with at a full trial. Argue that this is NOT a suitable case for an SJ. Take a print out of CPR24 from the Ministry of Justice website http://www.justice.gov.uk/civil/procrules_fin/index.htm to let the DJ know you are aware of the rules re SJ's.

(2) Argue that that dear Diane's statement is hearsay. Have a look at the sticky on the 1995 Civil Evidence Act (take a copy of the relevant section of the 1995 Civil Evidence Act with you). Finally, argue

(3) that the statements are too late and are thus inadmissible and add that you have not had time to seek advice about their contents.

At this point, I think the main aim should be to get the SJ application refused and not necessarily to get the case struck out. As to costs, I would draw up a short statement of costs in relation to the SJ only and not the full case and fax this to Optima tomorrow. The rate for a LiP is only £9.25 per hour but you will take much longer to do the work than a solicitor. I would put down about 2 hours for reading the application, 6 hours for SJ research and another 4 hours preparing the witness statement, plus another 4 hours and travel costs for attendance at the hearing. Add in a flat amount of say £12.50 for each letter you have had to send. The total could be £140-150. If you win and the DJ asks about costs don't be greedy but state you have notified Optima of costs of £140ish but that £100 would be acceptable. The solicitor won't be able to argue much as he is likely to be asking for anything up to £500 for the same work.

Other than that, I would end with best of luck for Friday. Remember we are all behind you and will support you whatever happens.

[Chipmeister]

Series3 - following your thread with interest as I suspect I will be in a similar position to you shortly. Their supplimental witness statement seems bizarre, particularly the part where you have informed them that they have titled your agreement incorrectly, and they are denying this then agreeing in the same paragraph!

 

Best of luck!

 

CM

[Series3]

thanks for your support..

I hope to use this experience to help other people in the same boat.

Big learning curve but also very interesting....lol...I think I'm getting hooked.

series..

all comments and opinions welcomed.

[Series3]

just for the record..there costs are around £1600, I'll try find the letter and post it up..

that much stuff going round in my head at the moment..

[Series3]

Have a look at the sticky on the 1995 Civil Evidence Act (take a copy of the relevant section of the 1995 Civil Evidence Act with you).

 

I can't find this. could someone point it out for me?

cheers..(head's in another world right now)

 

series3

[Series3]

bump..can anyone link that sticky for me?...

at court tomorrow and feeling a bit down but confident..

If anyone can help by pointing out anything to me or anyone with

experience of court...just a bit of a gee up..

 

thanks

 

series3

[mystery1]

http://www.consumeractiongroup.co.uk/forum/showthread.php?162535-Documents-in-Court-Civil-Evidence-Act-1995%281-Viewing%29-nbsp

 

M1

[Series3]

thanks for that..

[vjohn82]

You'll be fine... you can't be jailed and you can't be killed.

 

How much worse could it get than that? Read your case through... make sure you understand it... really ram home the points you want even if the Judge does not look impressed... keep ramming them home! The Judge will know whether they are making a monumental cock up which would lead to an appeal.

 

When you are finished... go for a drink and report back here!

[Chipmeister]

Hey there Series3, have been thinking of you and wanted to drop a quick line to wish you all the best for tomorrow. The forum appears to have been down for a few hours so this is the earliest I could get here! I like vjohn's advice!! Best of luck, CM

[Series3]

just when I needed it the site goes down....lol

well I'll be here for an hour or two..I work better when I'm tired.

what is the difference between a credit agreement and a credit card agreement....(not a joke)

the prescribed terms I mean..

 

thanks for all your help..

I'll stick to what vjohn82 said about showing them I have a defense.

will try to get the hearsay across..

will I only need the relevant parts to the act?

 

 

amex v brandon.....where does it say it's been appealled?

I am hoping to use that in court.

[GeoffreyAlby]

http://www.consumeractiongroup.co.uk/forum/showthread.php?245171-MBNA-Optima-Legal-Court-Papers-Rec-d!/page12

 

Take a look at Post 230, details about a Credit Agreement and a Credit Card Agreement....

[Series3]

thanks geoff

I was just reading fluffystufs thread..shame I missed what she edited out about her day in court..

[Echodale]

Site was down when I was on line last night but hopefully you have got all you need for today.

 

The judge should rule that the case is not appropriate for summary judgement and tell them they can't claim for costs either and then order they pay your costs.

 

Just remember firm, calm, polite and don't interrupt judge or barrister when they are speaking and don't allow the barrister to interrupt you.

 

Before the hearing if the barrister approaches you in the waiting room don't respond to anything he or she says with anything other than thanking them for any information but politely informing them that immediately before the hearing is a bit late for anything they want to [noparse]contribute[/noparse]. It is likely the barrister will be from a local firm and will not know your case intimately, very likely only read up on it this morning or last night and will have photocopied case law to use in the SJ hearing so the less you tell them in the waiting room the better.

[car2403]

Had problems with my own internet connection, so couldn't get on, plus have to go now.

 

In essence, I agree with the last post - the fact you both think you can apply for/successfully defend a SJ application should mean that SJ isn't appropriate and the case should go to a full hearing.

[Series3]

cheers..

coffee, shower and shave.....

It's a horrible day out there today.rain, thunder...

[Chipmeister]

amex v brandon.....where does it say it's been appealled?

I am hoping to use that in court.

 

Morning Series3,

 

I am by no means an expert, still learning as I go on my own case and still heavily reliant on more knowledgable folk round here, but for the record, I had a good read of Amex v Brandon a couple of nights ago. In my opinion, Mr Brandon was done over because he didn't do his homework and because he simply stopped making monthly payments. I believe he raised many valid points but was not able to substantiate them to the Judge's satisfaction and due to way Mr Brandon conducted his account the Judge felt compelled to rule in favour of AMEX. I was distressed to notice that one of the Judges involved in the Brandon case noted that AMEX were a big organisation and therefore would surely have done things properly. Hmmmmm!!

 

The version of Amex v Brandon I read was dated 23 June 2010. I am not certain about whether or when it has been appealed, perhaps another CAGger can advise of that. I would recommend you have a read of it though, it's about 11 pages, just type AMEX v Brandon into Google and you should find it. As you read through it, you will, as I did, find many parallels to your case which will immediately give you an advantage - should the opposition bring it up you will be able to squash them suitably and prove why your case isn't suitable for summary judgement.

 

As someone mentioned previously, it is only Optima's belief that you don't have a case - if they truly believed that they wouldn't be trying to short cut the trial process by taking it to a summary judgement hearing!

 

Please note, the above are just my thoughts and comments.

 

All the best,

CM

[Series3]

cheers....will read it properly in the waiting room

I'll be off line now...

get back later..