CL Finance/cohen Claimform - old Virgin Money Credit Card Debt ****WON****

[gh2008]

Do you mean adjourned or listed for the hearing date??

 

Yes, submit a WS 3 days before your application hearing (theirs should be with you 7 days before) in response to the newly received 'bundle' and go through each piece carefully noting why it still does not comply with the original order.

 

Be prepared for their WS to be given to you on the day. If there is loads of stuff in it that is new etc do not be afraid of asking for the hearing to be adjourned due to their unfair behaviour after all you are a LiP and ask for your costs for the day as well.

[pigland]

Hi all,

 

I have a Notice of Hearing dated 14th August 2010 from the Court Stating;

 

Signed statements setting out the evidence of all witnesses on whom each party intends to rely shall be prepared and copies included in the documents mentioned. This includes the evidence of the parties themselves and of any other witnesses, whether or not he or she is going to come to court to give evidence.

 

The court may decide not to take into account a document (or video) or the evidence of a witness if these directions have not been complied with.

 

Documentation and witness statements to be filed by 8th September 2010.

 

The court must be informed immediately if the case is settled by agreement before the hearing date.

 

As per previous posts I put in a Defence and an application for a Strike-out.

 

 

Answering posts in turn;

 

CB ref post 191;

 

‘What do they mean by the correct PO box hadn’t been given to them. Have they not provided other information to the correct box number ?’

 

They have not provided any correspondence to the PO BOX even though I have notified them. I also notified the Original Creditor when I put in my CCA request of my PO Box being my correct address. Even the Default Notice they supplied does not have this address!

 

Pt2537 and GH ref post 193 & 194;

 

‘Was it the statement for the strike out?

Did the court give reason why it was adjourned?’

 

I have since rung the Court again to clarify, they said ‘the Strike-out application has been adjourned to the date of the trial 22nd September.’

 

GH ref post 194; ‘in response to the newly received 'bundle' and go through each piece carefully noting why it still does not comply with the original order.’

 

This new bundle is no different to anything they have sent to the Court previously, except they’ve paid my costs.

 

As I now have to file a Witness Statement, shall I just copy the Witness Statement as per the Strike-out on Post 184 but point out that they have eventually paid my costs?

 

What evidence shall I submit?

 

Kind regards,

 

Pigland

[bazaar]

Well IMHO, All you can submit is what youve stated previously, but add the notation that they have paid costs due to their failed attempt.

[pigland]

Hi all,

 

This is what I'm looking to submit..I have only until tomorrow to do this...any comments urgently welcome!

 

Witness Statement By Miss D. Screet

 

With reference to the order made by District Judge xx made on xx xxxx 2010 and yet again by District Judge xxxx on xx xx 2010 at County Court, the Claimant has failed to provide those documents as ordered.

 

1) No legible copy of the agreement has been supplied as ordered.

 

2) A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case have not been received as ordered.

 

3) No Proof of service of a Notice of Assignment has been supplied as ordered.


 

4) The amount of arrears stated in the Default Notice has not been substantiated.

 

5) The copy Default Notice supplied is incorrect in that it doesn't allow the correct period of time for the breach to be remedied.



 

6) Proof of service of the Default Notice has not been provided.

 

7) The Claimant has only just paid my costs (see cheque dated 23 Aug 2010 and accompanying letter attached). This was not paid as previously ordered ‘within 14 days’ by District Judge xxxx on x May 2010.

 

I believe that the facts stated in this witness statement are true

 

Signed …..................

Date ….....................

 

Note; 7) See post 188 and the letter I refer to. The order made by the Judge actually gave my correct PO Box address, I have been writing to Howard Cohen quoting the correct PO Box and the original creditor has the correct PO box number...

 

If you think I have forgotten anything or can improve please comment.

 

Thank you all for previous comments

 

Kind regards

 

PL

[car2403]

What are you asking for?

 

I mean, you need to say in the letter what you need to happen. for instance, "I would ask the Court to consider it's case management duties under CPR XXX and would ask that the statement of claim for XXX is struck out for failing to comply with the Courts orders", etc...

[pigland]

Hi Car,

 

I maybe getting myself confused here on protocol?? I assume I have only until tomorrow to put in a witness statement as per the Order of the court for the trial on the 22nd September.

 

I assume I have to put in a Witness Statement for this Defence?

 

Is this not the case as I have recently put in a Strike-Out application and the Strike-out application has been adjourned to the date of the trial 22nd September?

 

So, do I not need to put in this WS to accompany the Defence?

 

"I mean, you need to say in the letter what you need to happen. for instance, "I would ask the Court to consider it's case management duties under CPR XXX and would ask that the statement of claim for XXX is struck out for failing to comply with the Courts orders", etc...'

 

Referring to your post and comment above, were you aware I'd already put in the Strike-out application, or is this an additional letter to accompany the Strike-out application?

 

Sorry for any confusion, please clarify.

 

Kind regards,

 

PL

Edited September 7, 2010 by pigland

[pigland]

Hi all........THIS IS NOW URGENT!!! Crikes!!!

 

I have just received a bundle of documents and a Witness Statement from Howard Cohen. Nothing has changed much!!

 

Here is their Witness Statement!

 

1. I am a Collections Officer, of CL Finance and I am authorized by the Claimant to make this statement on its behalf, I make this statement in support of the Claimants claim to recover monies owing to the Claimant by the Defendant pursuant to a credit agreement.

Save where I indicate otherwise, the statements in this witness statement are from my own knowledge.

 

2.On xx xx 2004 the Defendant entered into a regulated credit agreement with MBNA account number xxxx for the provision of a credit card. There is now exhibited hereto marked GJH1 a copy of said agreement.

 

3. From time to time, the Defendant made use of the credit facilities provided under the agreement. There are now exhibited hereto marked GJH2 copy monthly statements of the account from xx 2008 to the final statement being xx 2009. There was a balance of £x,xxx outstanding upon the commencement of these proceedings.

 

4. On x 2009 pursuant to Section 87 (1) of the Consumer Credit Act 1974, a Default Notice was served upon the Defendant requiring payment of the arrears to be made, the Defendant having failed to make payment in accordance with the terms of the agreement. The Defendant failed to comply with the same and therefore the agreement was terminated. There is now exhibited hereto marked GJH3 a copy of said Default notice.

 

5. Under the terms and conditions of the credit agreement, MBNA Europe Bank Limited reserve the right to transfer their rights and duties at any time and this does not affect the Defendant’s ability to remedy the Default. I can confirm that the Defendant failed to make payment of the arrears to neither MBNA Europe Bank Limited nor CL Finance Limited in any event.

 

6. By deed of assignment, dated 20th February 2009, MBNA Europe Bank Ltd assigned the account absolutely to CL Finance Limited through a rolling 6 month contract dated 29th December 2008, notice of such assignment being sent to the Defendant on 6th March 2009. There is now exhibited hereto marked “GSD4” a copy of said deed of assignment and marked GSD5 a copy of the said notice of assignment.

 

7. The Defendant’s defence has been noted, however the Claimant would like to draw the court’s attention to paragraphs 2 – 6, which provide details of the account and assignment.

 

8. The Claimant further notes the Defendant’s comment that the Claimant failed to comply with the costs order made by District Judge xx dated 12 May 2010, however, however the Claimant did comply with the said order on 9th June 2010. There is now exhibited hereto marked GSD6, a copy of the service letter.

 

9. Further the Claimant notes the Defendants comments that the Claimant failed to comply with the costs order made by District Judge xx dated 12 May 2010, however, the Claimant again complied with the said order on 18 May 2010. There is now exhibited hereto marked GSD7, a copy of the service letter sent to the Defendant with the cheque of £80.00.

 

10. On 16th July 2010, the Claimant received the said cheque of £80.00 back from the PO BOX address provided by its agent from the hearing on 12th May 2010, this PO BOX address was incorrect for the Defendant.

 

11. On 20th August 2010 the Claimant sent the defendant all documents they were ordered to provided in the order dated 12th May 2010 along with the cheque of £80.00 to his correct PO BOX address. There is now exhibited hereto marked GSD8, a copy of the service letter sent to the Defendant.

 

12. I therefore contend that the Defendant has no valid defence to the claim and respectfully submit that the Defendant is liable to CL Finance Limited for the sum of £xxxx.xx claimed in these proceedings, and request that there be judgment in favour of CL Finance Limited in that sum, together with the sum of £290.00 being the fixed commencement costs and £200.00 allocation questionnaire fee, together with any other sum that the court deems just upon entering judgment.

 

This is hilarious!

 

Ref; 8. ‘however the Claimant did comply with the said order on 9th June 2010. There is now exhibited hereto marked GSD6, a copy of the service letter’

 

The letter they have attached as GSD 6 has two digits around the wrong way on the PO BOX number and mentions nothing of a cheque!

 

Ref 11. The Cheque they sent was dated the 23 Aug 2010, not 20 Aug 2010 and certainly not 18 May 2010.

 

Please see my last post, this is now urgent as I believe I have until tomorrow to serve any evidence and Witness Statement!

 

 

Thank you,

 

Kind regards,

 

PL

[car2403]

Confuzzed

 

You've submitted a defence then put a SO application in and the application and the hearing are on the same day?

[pigland]

Yep! If you're confused...you want to try being me! http://www.consumeractiongroup.co.uk/forum/images/smilies/rolleyes.gif

[car2403]

Ok, so looks like you need a WS for your defence, should the SO application be unsuccessful, in that case?

[pigland]

That's correct, I originally put in a Defence with a Strike-Out within..The Court then told me I needed to put in a separate application for a Strike-out. This I did and then the Court said ‘the Strike-out application has been adjourned to the date of the trial 22nd September.’

 

So I take it my Witness Statement is good? What about the cheque issue? Shall I leave it as simple as post 197?

 

Kind regards,

 

PL

Edited September 7, 2010 by pigland
forgot words..Oops!

[car2403]

Looks like it.

 

If you need something on the four corners argument, see here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/159697-order-prescribed-terms.html

[pigland]

Thank you Car...

 

Would it be prudent to quote Wilson and another v Hurstanger Ltd (2007) in the Witness Statement or shall I just go armed with this;

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

Kind regards,

 

PL

Edited September 7, 2010 by pigland
Head like a siv!

[gh2008]

Your WS needs to show why their claim cannot succeed

 

Any problems with the agreement

prescribed terms?

T&C?

 

Then there is their failure to submit a legible agreement in breach of S78 and the Court Order

 

No statements in breach of Court Order

 

Was the DN compliant? right wording? right time allowed?

 

 

Sorry, haven't got time to re-read the whole thread, but I am sure all these points will have been commented upon

 

Good Luck

 

If you get completely stuck you can ask for more time - try and agree it with the claimant's solicitors otherwise you will have to apply to Court

[pigland]

Hi all,

 

I'm now writing a Witness Statement (Thank you GH) . I'll be on this all evening and will post up as I'm going along. This has to be in by tomorrow so any help tonight or tomorrow by anyone would be gratefully received!

 

Kind regards,

 

Pigland

[pigland]

To save time....Does anyone know of a link to a Witness Statement that may be relevant to my case?

 

Kind regards,

 

PL

[car2403]

Not sure that will work :/

 

Your witness statement should really focus on replying to their statement of claim - why should their claim fail, etc? Dodgy agreement? Inaccurate Default Notices? Unlawful Termination? Lack of proper assignment? Etc. etc

[pigland]

Witness Statement of Miss D Screet

08 September 2010

 

Re Hearing XXXX 22 September 2010

 

In the XXXXXX County Court

Claim Number: XXXXXXX

 

 

Between:

 

CL Finance (Claimant)

-And-

Miss D Screet (Defendant)

 

I, XXXX of XXXXX, XXXXXXX, being the Defendant, am a litigant in person in this case.

1. I make this Witness Statement in support of my defence against the Claimants claim against me.

 

2. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests.

3. There is now produced and shown to me a bundle of documents marked CL Finance1. This bundle contains the Claimants exhibits xxx1, xxx2, xxx3, xxx4, xxx5, xxx6, xxx7, xxxx8

Credit Agreement

4. The applicant has served a copy of the agreement referred to as exhibit xxx1 in the Claimants Witness Statement. The claim is based upon this agreement.

5. The claimant has not filed a legible copy of the credit agreement that complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered by Order made by District Judge xxx made on 28 February 2010 and yet again by District Judge xxxx on 18 May 2010 at xxxx County Court.

6. The agreement referred to as their exhibit xxx1 appears to be in many parts.

7.. Part is illegible, and appears to be a photocopy.

8. I believe that the document fails to comply with Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the background medium upon which the information is displayed.

9. In an attempt to mislead and confuse both myself and the court, the Claimants have also supplied under their exhibit xxx1 some later copies of MBNA’s terms and conditions, these are clearly not related to the rest of the agreement supplied. They are of a different font, size and style, the terms are not contained within the four corners of a signed agreement, nor is there any link in the agreement to those additional terms and conditions. This credit agreement is therefore materially defective.

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated;

“In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

Statement of Account

10. As per the Order made by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxx County Court; The Claimant has failed to supply ‘A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’.

11. The documents filed with the court by the Claimant and referred to as xxx2 included no more than the same incomplete set of copy statements previously disclosed by the Claimant. The statements supplied commence in 2008 with a carried forward balance. The claimant has not supplied strict proof of all sums claimed.

Notice of Assignment

12. No Notice of Assignment has been provided as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxx County Court;

Default Notice

13. The Consumer Credit Act 1974 s87 & 88 together with Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies.

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain-

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7 [8A] and 9 to 11 of that Schedule 10.

 

At schedule 2 Para 3 of the regulations it states the following:

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach…

 

3 a specification of: -

 

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

14. The Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post states:

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

15. The Claimant refers to a Default Notice within their Witness Statement, their exhibit xxx3. This Default Notice is dated 6 February 2009 (Friday).

16. The amount of arrears stated in the Default Notice has not been substantiated as the Claimant has failed to Supply A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case as ordered

17. The copy Default Notice referred to by the Claimant as xxx3 is incorrect as it does not comply with state legislation here and is invalid as it does not allow service in line with the statutory requirements. 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 11 February 2009, namely Wednesday 25 February 2009, not the 23 February 2009 as stated in the Default notice.

18. The Claimant has failed to provide Proof of service of the Default Notice as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxxx County Court.

19. As the Claimant has failed to provide Proof of Service as ordered. Therefore it must be further assumed that the rectify date be even later.

20. Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 10 days for compliance not 14 days as required.

21. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Default Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, in this judgment Kennedy LJ states inter alia :

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

 

22. Therefore, it would be the respondents’ position that the Claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective. This would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

23. Referring to the Claimants Witness Statement; Point 9 through to 11; The Claimant has only just paid my costs.

24 The Claimant claims within their Witness Statement (point 8) that they sent my costs on the 18th May 2010 with the letter dated 18th May 2010 and referred to as xxx7.

25. My correct PO BOX address was notified to the Original creditor MBNA in 2008.

26. The Claimant claims within their Witness Statement (point 10) that they; ‘received the said cheque of £80.00 back from the address provided by its agent’.

27. The Claimant claims Witness Statement (point 11); ‘ On 20th August 2010 the Claimant sent the Defendant all documents they were ordered to provide in the order dated 12th May 2010 along with the cheque of £80.00 to his correct PO BOX address. There is now exhibited hereto marked xx8, a copy of the service letter sent to the Defendant.’

28. I did not receive;

A legible copy of the agreement

A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case as ordered.

Proof of service of Notice of Assignment as ordered.

Proof of Service of the Default Notice

29. I did receive a copy of the letter dated 20 August 2010 and a cheque dated 23 Aug 2010. Referring to points 8 and 11 of the Witness Statement; the cheque was not dated the 20th of August or dated 9th June 2010. I believe the Claimant to be deliberately misleading the Court. See Cheque and copy of letter exhibited hereto marked DS1.

 

 

The courts power of enforcement

 

30. With regards to xxx1 these are not the Terms and Conditions applicable to the original Application I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3 which states:

Where a claim is based upon a written Agreement:

(1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

 

If the court is not minded to strike out the claimant’s statement of case, the defendant respectfully requests that the court orders the claimant to produce documentation in support of it case that complies with the Consumer Credit Act 1974, the Consumer Credit (Agreements) Regulations 1983, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, the Civil Evidence Act 1995 and CPR Practice Direction 16.

I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document

 

Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable.

31. With regards to xxx2 attached to Claimants Witness Statement the claimant has also only disclosed statements from 2008. My statutory rights therefore in my CPR 31.14 request (exhibit Miss D Screet1) has not been complied with. A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case will be required.

 

33. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence.

34. I therefore request that the court do dismiss the Claim.

 

I believe that the facts stated in this witness statement are true.

 

Signed

Dated

 

It is now 6’o’ clock in the morning and I’ve been up all night preparing this Witness Statement. I’m now going to bed for an hour. I would appreciate any comments or opinions on this Witness Statement.

This needs to be in today!

Thank you in advance!

 

ZZZ Pigland

Edited September 8, 2010 by pigland

[car2403]

I'll unapprove all but the latest one, so folks don't get confused

 

Point 8 - Why do you believe that? What basis is that belief? You need to say what you think, then back it up - the agreement is illegible because xxx, the signature isn't mine because xxx, etc.

 

Point 9 - despite the format/font issues, how can you show these T&C's are not part of the agreement? Are these some non-consecutive reference numbers in the corners, do they have the originals to inspect on the day, etc?

 

Don't state what Wilson says - that should be in the Defence - (although leave it in here, if it isn't ) but how does that apply in your case?

 

It's back to basics with your WS - the Judge probably won't read anything BUT this WS, so you need to make it as simple and effective, pointing out the issues, how they apply and what they mean here, to make it as easy for him (and you!) to understand what is going on.

 

An hours sleep? I'd be dead!!

[pt2537]

in respect of legibility, you do not need to recite the whole regs

 

you can simply say that the agreement is not easily legible, therefore does not comply with the requirements of Reg 2 Cancellation notices and copy docs regs. Furthermore i understand that this case confirmed by HHJ WAksman QC in Carey v HSBC at para.................

 

that way you raise the important principles but do not waffle about what lord Hoffman said or Lord Scott or Lord Justice Rix etc

 

The witness statement must be the facts you are going to say at trial, case law goes into submissions and legal arguments and skeleton arguments really

[pigland]

Thanks Car and Pt for your help!

 

I’ve not even had that hour yet! I’m now flagging and will sleep in a minute!

 

Pt; ‘I'll unapprove all but the latest one, so folks don't get confused’. Now I’m confused what do you mean?

 

Point 8; for reference pureposes on CAG I have an agreement exactly like Howard Cohen/CLFinance V littlebert Virgin MBNA Agreement on CAG. November 2004

The agreement supplied is blurred, The Prescribed terms are on the back, of the signature side, there is nothing linking the two and you can’t read some of the terms.

Point 9. The T & C’s look so totally different it’s mad! The page layout, font size, type etc are soo different! I have a statement pre 2008 that shows a charge of £25.00 the new MBNA terms and conditions they have added as part of their agreement only show £12.00. PT and Car I take on board the simplicity part. I’ll amend in an hour I really do need to sleep!

Wilson wasn’t in Defence so I’ll leave in?

 

In the order by the Judges it specifies’ Copies of the Credit Agreement and any documents referred to within it which complies with the Consumer Credit Act and all subsequent regulations, which the claimant seeks to rely upon. The original documents to be bought to the hearing’

 

How do I insist that the original agreement is brought to the hearing. Is this possible in the Witness Statement?

 

Incedentally; When I sent in my original cca request I notified MBNA that my New address was my PO BOX and I put the account in dispute! They ignored this and the default notice and DOA etc supplied does not have that address on. How can I introduce this into my WS/

Brain frazzled.

 

Thanks again. going for 33 winks!

 

Kind regards,

 

PL

[bazaar]

Well those facts need to be put into your ws, that they have misinformed the court of dates, make a list of points that are wrong and debunk every comment they have made.

I notice they dont mention the statements, only the 2008 ones, also, if they were ordered to provide originals at court, then highlight it in your WS,

IE, 'the defence notes that Judge xxxx ordered that the claimant bring original documents to court for inspection' then if they turn up without them, you can hit them with it, they are wasting everyones time and youd respectfully ask for costs again.

 

"Point 9. The T & C’s look so totally different it’s mad! The page layout, font size, type etc are soo different! I have a statement pre 2008 that shows a charge of £25.00 the new MBNA terms and conditions they have added as part of their agreement only show £12.00. PT and Car I take on board the simplicity part. I’ll amend in an hour I really do need to sleep!

Wilson wasn’t in Defence so I’ll leave in?"

 

IMHO I would put, 'The T&C's supplied by the claimant appear to have no relation to the original agreement, the defence has a prior statement showing a charge of £25.00, exhibit xxxx, ( Be careful here though in case they say youve had previous statements or is this part of their supplied docs?) the T&C's supplied by the claimant show charging at £12.00, of further concern is that the fonts and layouts are significantly different, therefore the T&C's cannot be or have formed any part of the original agreement, which has been ordered to be produced by |Judge xxxxx.

Edited September 8, 2010 by bazaar
little concern

[car2403]

Pt; ‘I'll unapprove all but the latest one, so folks don't get confused’. Now I’m confused what do you mean?

 

That was me. I meant removing the multiple WS's you've posted, as it wasn't clear which was the most up to date/recent - that's done now

[pigland]

Witness Statement of Miss D Screet

08 September 2010

 

Re Hearing XXXX 22 September 2010

 

In the XXXXXX County Court

Claim Number: XXXXXXX

 

 

Between:

 

CL Finance (Claimant)

-And-

Miss D Screet (Defendant)

 

I, XXXX of XXXXX, XXXXXXX, being the Defendant, am a litigant in person in this case.

1. I make this Witness Statement in support of my defence against the Claimants claim against me.

 

2. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests.

3. There is now produced and shown to me a bundle of documents marked CL Finance1. This bundle contains the Claimants exhibits xxx1, xxx2, xxx3, xxx4, xxx5, xxx6, xxx7, xxxx8

Credit Agreement

4. The applicant has served a copy of the agreement referred to as exhibit xxx1 in the Claimants Witness Statement. The claim is based upon this agreement.

5. The claimant has not filed a legible copy of the credit agreement that complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered by Order made by District Judge xx made on 28 February 2010 and yet again by District Judge xx on 18 May 2010 at xxxx County Court.

6. The agreement referred to as their exhibit xxx1 is not easily legible, therefore does not comply with the requirements of Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). Furthermore I understand that this case confirmed by HHJ WAksman QC in Carey v HSBC

7. The T&C's supplied by the claimant appear to have no relation to the original agreement, the defence has a prior statement showing a charge of £25.00, exhibit xxxx, the T&C's supplied by the claimant show charging at £12.00, of further concern is that the fonts and layouts are significantly different, therefore the T&C's cannot be or have formed any part of the original agreement, which has been ordered to be produced by District Judge xxxxx and again by District Judge xxx

Statement of Account

8. As per the Order made by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxx County Court; The Claimant has failed to supply ‘A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’.

9. The Defence notes that the documents filed with the court by the Claimant and referred to as xxx2 included no more than the same incomplete set of copy statements previously disclosed by the Claimant. Yet again the statements supplied commence in February 2008 with a carried forward balance and end in January 2009. The claimant has not supplied strict proof of all sums claimed.

10. My correct PO BOX address was notified to the Original creditor MBNA on 5th December 2008 and again on January 5 2009.

Notice of Assignment

11. No Notice of Assignment has been provided as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxx County Court;

Default Notice

12. The Consumer Credit Act 1974 s87 & 88 together with Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies.

13. The Claimant refers to a Default Notice within their Witness Statement, their exhibit xxx3. This Default Notice is dated 6 February 2009 (Friday).

14. The amount of arrears stated in the Default Notice has not been substantiated as the Claimant has failed to Supply a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxxx County Court.

15. The copy Default Notice referred to by the Claimant as xxx3 is incorrect as it does not comply with state legislation here and is invalid as it does not allow service in line with the statutory requirements. 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 11 February 2009, namely Wednesday 25 February 2009, not the 23 February 2009 as stated in the Default notice.

16. The Claimant has failed to provide Proof of service of the Default Notice as ordered by District Judge xxx on 28 February 2010 and yet again by District Judge xxx on 18 May 2010 at xxxxx County Court.

17. As the Claimant has failed to provide Proof of Service as ordered. Therefore it must be further assumed that the rectify date be even later.

18. Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 10 days for compliance not 14 days as required.

19. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Default Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, in this judgment Kennedy LJ states inter alia :

20. Therefore, it would be the respondents’ position that the Claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective. This would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

21. The Claimant has only just paid my costs as ordered to be paid within 14 days by District Judge xxx on the 12th May 2010. I received these costs on 25 August 2010.

22 The Claimant claims within their Witness Statement (point 8) that they complied with the order made by District Judge xxx dated 12 May 2010 on the 9th June 2010. They have attached exhibit xxx6 a copy of the service letter sent to the Defendant. This exhibit also includes a copy letter addressed to the Court.

23. Referring to the above Court order and the Claimants Witness Statement point 8, neither the Court nor myself have received a Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termionation Notices) Regulations 1983 (SI 1983/1561) as amended, together with proof of Service as Ordered by District Judge xxx dated 12 May 2010.

24. Referring to the Court order made by District Judge xxx dated 12 May 2010 and the Claimants Witness Statement point 8, neither the Court nor myself have received a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’.

25. Referring to the Court order made by District Judge xxx dated 12 May 2010 and the Claimants Witness Statement point 8, neither the Court nor myself have received; Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925 as ordered.

26 In point 9 of the Claimants Witness Statement, the Claimant claims they complied with the Court order made by District Judge xxx dated 12 May 2010 and have exhibited a copy of service letter exhibited xxx7 dated 18th May 2010. Within this letter they refer to a cheque for £80.00

26. In point 10 of the Claimants Witness Statement, the Claimant claims that they; ‘received the said cheque of £80.00 back from the PO BOX address provided by its agent from the hearing on the 12th May 2010’. This PO BOX was incorrect for the Defendant.

27. In the Past I have written to the Claimant, the correspondence address has been clear

28. The Claimant states on their Witness Statement point 11; ‘ On 20th August 2010 the Claimant sent the Defendant all documents they were ordered to provide in the order dated 12th May 2010 along with the cheque of £80.00 to his correct PO BOX address. There is now exhibited hereto marked xx8, a copy of the service letter sent to the Defendant.’

28. I did eventually receive on the 25 August 2010 a cheque for £80.00 this was not within the 14 days as per the Court order made by District Judge xxx dated 12 May 2010. As per the order made by District Judge xxx dated 12 May 2010 I did not receive;

A legible copy of the credit agreement that complies with the Consumer Credit Act 1974 and all subsequent regulations.

A Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termionation Notices) Regulations 1983 (SI 1983/1561) as amended.

Proof of Service of the Default Notice

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925

A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’

29..I note the claimant at point 11 of their witness Statement states ‘On 20th August 2010 the Claimant sent the Defendant all documents they were ordered to provide in the order dated 12th May 2010 along with the cheque of £80.00 to his correct PO BOX Address. There is now exhibited hereto marked xxx8 a copy of the service letter sent to the Defendant.

 

30 . I received a copy of the letter dated 20 August 2010. The Claimants state they sent the cheque and documents on the 20th August 2010 with a cheque. The cheque was dated 23 Aug 2010this is 3 days after the alleged date of sending. . (Exhibit DS1)

31. As per the order made by District Judge xxx dated 12 May 2010, yet again I did not receive within the letter dated 20th August 2010;

A legible copy of the credit agreement that complies with the Consumer Credit Act 1974 and all subsequent regulations.

A Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termionation Notices) Regulations 1983 (SI 1983/1561) as amended.

Proof of Service of the Default Notice

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925

A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case’

 

The courts power of enforcement

 

32. With regards to xxx1 these are not the Terms and Conditions applicable to the original Application I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3 which states:

Where a claim is based upon a written Agreement:

(1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

 

If the court is not minded to strike out the claimant’s statement of case, the defendant respectfully requests that the court orders the claimant to produce documentation in support of it case that complies with the Consumer Credit Act 1974, the Consumer Credit (Agreements) Regulations 1983, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, the Civil Evidence Act 1995 and CPR Practice Direction 16.

I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document

 

Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable.

33. With regards to xxx2 attached to Claimants Witness Statement the claimant has also only disclosed statements from 2008. My statutory rights therefore in my CPR 31.14 request (exhibit Miss D Screet1) has not been complied with. A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case will be required.

 

34. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence.

35. I therefore request that the court do dismiss the Claim.

 

I believe that the facts stated in this witness statement are true.

 

Signed

Dated

 

Any urgent comments welcome... I've only got a few hours to put this Witness Statement in.

 

I am very tired 45 minutes sleep!!!

 

Kind regards,

 

PL

[pigland]

A big thank you to everyone that has helped or taken an interest. I will post up the Witness Statement I eventually submitted.

 

I have now had some sleep and my brain is again functioning as normal. Well... as normal as my brain can!

 

Thanks again.

 

Kind regards,

 

Pigland