arrow global llc and i , Further help required. - BATTLE CONTINUES

[postggj]

as stated

 

we have a few days

 

ill draft a response for you to have this thrown out

[bobbydog]

many many thanx helpful as usual

[bobbydog]

hi all

just checking if postggj has gotton around to the response to posting *95*

getting closer everyday

i have all my available paperwork laid out and am waiting for the nail in the coffin letter from postggj

[Docman]

Hi bobbydog

 

At one level, the witness statement attached to your application should be enough. Basically you are saying you haven't received any documents to do with the legal action.

 

If AG are going to attend, it may be that AG send all the documents to you a couple of days before the hearing and then send a local rent-a-solicitor (who will only have a few papers) to argue their case. You can make a further statement verbally to the court if you are not producing any documents but you will have to be sure about what you want to get over to the judge, who may not like litigants in person using the law to 'avoid paying' their debts. You may think it would be better to set out your case in full, in effect drafting your defence as an additional witness statement. (If you are intending to use a document you will need to file a witness statement in any case). The judge may also prefer to read what you are going to say beforehand.

 

The problem with witness statements is that you should send a copy to AG at least 7 days before the hearing which may then cause them to attend.

 

The key points you need to get over are

1. Is there a valid CCA?

2. Was the CCA defaulted properly? and

3. Have AG the legal right to bring the action?

 

So, the first point. You posted up a copy of the application form earlier. Has this document been served on you formally (and the court) as part of the legal action?

 

Second point, have you ever received a default notice from AG or Capital One?

 

Third, has AG ever writtten to you to say they own the debt?

 

I suspect I know the answers to poins 2 & 3, but I would just like to clarify.

[bobbydog]

well thanks docman

the key points first

the only cca i have here with me is the copy application form sent thru the post to me the other week

as fdor the cca defaulted properly i have not never recieved in any shape or form from any company a default notice,

the first correspondance i had with AG was the other week sending me this copy application form

as i have alraedy furnished them with a witness statement (thanx again docman) how different should the next statement be

copies of WS sent to BC, AG, CAP1, AND FRED

[Docman]

bobbydog

 

It's not easy to advise since we don't know what will happen on the day. Best outcome is that the judge allows your application and dismisses the claim in total. However, Isuspect that BC will instruct a local rent-a-solicitor who will only be supplied with a few papers and then be expected to woffle.

 

A good outcome would be that the judge dismisses the CCJ and charging order and orders you to file a defence. (You need the court's permission to formally lodge a defence so late). It might help if the judge had an indication of what you might say and so to that end I have drafted a defence of sorts, as you haven't had any documents.

 

Essentially, you need to attack the agreement (signed/vaild etc); whether it was defaulted properly (DN etc) and whether its has been passed on correctly. The judgment in the Wilson case is very important, particularily IMO papraphs 28 & 29.

 

My draft suggestions are below

 

IN THE SOUTHAMPTON COUNTY COURT CLAIM NUMBER XXXXXXX

BETWEEN

ARROW GLOBAL LLC

Claimant

And

Bobbydog

Defendant

………………………………………………..

DEFENCE

………………………………………………..

1. I, I, bobbydog of Somewhere in the New Forest, am the Defendant in in this action and make the following statement as my defence to the claim made by Arrow Global LLC.

2. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimant’s Particulars of Claim and puts the Claimant to strict proof thereof.

The Requirements of the Consumer Credit Act 1974

3. The Claimant stated in the original Particulars of Claim that the alleged Account is regulated by the Consumer Credit Act 1974.[Or whatever was in the POCs on the N1 claim form] Any such regulated agreement must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

4. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These prescribed terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

5. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

6. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order. I refer to LORD NICHOLLS OF BIRKENHEAD.words:

“28,……Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in para (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable (see Sch 6 to the Consumer Credit (Agreements) Regulations 1983, SI 1983/1553). The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court (s 65(1)). Section 127(1) provides what is to happen on an application for an enforcement order under s 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under s 127(1) are subject to significant qualification in two types of cases. The first type is where s 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor (s 127(3)). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order”..[Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) ]

7. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 require that the lettering in every copy of an executed agreement be easily legible.

8. The Defendant denies that the ‘Agreement’ produced by the Claimant is an agreement within the terms of the Act.

9. The document states clearly that it is an Application Form. The Defendant asserts that most of the document is not easily legible and does not appear to contain the prescribed terms. The Defendant notes that the Claimant has also produced a copy of a document described as “the most recent Terms and Conditions”. The Claimant is put to strict proof that these Terms and Conditions are the ones that formed part of the Application Form.

10. Further, S 62(1) of the Act requires that if an unexecuted agreement is presented for signature, but upon signing by the debtor the document does not become an executed agreement, then a copy of it, and of any other document referred to in it, must be there and then delivered to the debtor. Further, S 62(2) provides that if an unexecuted agreement is sent to a debtor for signature, a copy of it, and of any other document referred to in it, must be sent at the same time. The Defendant asserts that no such copy was presented or sent.

11. S 62(3) provides that a regulated agreement is not properly executed if the requirements of S 62 are not observed.

Default Notice

12. According to the Particulars of Claim a document entitled “Default Notice” was sent to the Defendant. This purported to be a default notice under s 87(1) of the Act.

13. It is also inferred that this document was posted to the Defendant on xx MONTH 20XX . By S7 of the Interpretation Act 1978, a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post.

14. A default notice is a required by S 87(1) of the Act before a creditor can become entitled to take any action in respect of a regulated credit agreement.

15. Furthermore s 88(1) of the Act requires that a default notice must be in the prescribed form. The prescribed format for a default notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

16. By Regulation 2(2) of these regulations, any Default Notice must include both a description of the agreement sufficient to identify it and the name and a postal address of the creditor or owner.

17. It is denied that the document contains information sufficient to identify it nor the name and postal address of the creditor or owner.

18. By S88 (1)© of the Act, the date before which any breach can be remedied or compensation paid, must be stated in the Default Notice. By S 88 (2) of the Act, as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006, the specified date must not be less than 14 days after the date of service of the default notice. The 14 day period was also required by paragraph 3© of Schedule 2 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

19. By case law, the 14 days in the section means 14 ‘clear days’, excluding the day on which the notice was served and the day on which the Claimant proposed to take the steps specified in the notice.

NOTICE OF ASSIGNMENT

20. The Defendant neither admits nor denies the Claimant’s statement that the Account was assigned to the Claimant but puts the Claimant to strict proof thereof.

21. The Claimant asserts that a Notice of Assignment was sent. The Defendant denies that a Notice of Assignment was sent and puts the Claimant to strict proof thereof.

22. In respect of that which is denied, the Defendant asserts that in effecting statutory assignment to the Claimant, explicit Notice of Assignment must be given by writing under the hand of the assignor as required by S 136(1) of the Law of Property Act 1925, [the LPA 1925].

23. Further, the Defendant asserts that by failure of a Notice of Assignment to be accurate, the legal right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169].

24. For the assignment of a debt to be effective and so giving the Claimant a right of action, a valid notice of assignment must have been sufficiently served on the Defendant by a registered postal service pursuant to s 196(4) LPA 1925 before court action is commenced.

25. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

26. The Defendant denies any valid notice of assignment of the alleged debt to the Claimant was sufficiently served on the Defendant and so the Claimant has no right of action.

AND the Defendant

27. seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

28. Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

29. The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

Statement of Truth

I, BOBBYDOG believe the above statement to be true and factual.

Signed

 

 

Date

[bobbydog]

many thanx for all the info docman

i am really hoping to also to get a run down from postggj at least to run through the letters and the way the day will go on monday

YES IT IS MONDAY 2-8-10

[Docman]

Best of luck then for next Monday then.

[bobbydog]

s**t it's tomorrow. i am so trying to be up for this, but now the time is near and i am sort of bricking it.

hoping to keep the nerves intact and to not lose my cool, hoping that the judge is a good judge, and also hoping things go well

hopingt all my paperwork is in place and ready rambling really, but i think it helps to ramble, wishing i had a shoulder with me, must be brave and do it on my own, i have to do this, i need to do this, i want to dso this , oh god what will happen tomorrow, well people my ramblings over and probably so am i

well will let you all now how it went tomorrow evening

thank you all for your contributions, and especially to DOCMAN, just wish postggj was able to contribute but being a very busy person, he is probaly inundated, still thanx to all

[bobbydog]

well people

i am away to the courts now, the court hearing is at 11.00

so hopefully by late this afternoon, i should have some news

speak later

ciao

[bobbydog]

will update tonight

but all i will say to DOCMAN is a very big thankyou :D:D

[mandyjayne]

I take it that some good news is on the way?

 

MJ:)

[bobbydog]

today this dog had his day

i went to court arriving in good time to get myself aquainted with the surroundings

then the journeyman solicitor arrived and introduced himself to me and we went to a private room

he asked me how i was hoping things to go and i replied i am here to get a set aside and the final order to be cancelled

he the nsaid that the probabilities looked bleak for me

then he wanted to give me some paperwork relating to the case

and i stood my ground and said that if i wasn't good enough to have them sent to me by post then i do not want them now, he then said that he would only produce them in the court so i may as well take them now, i said NO you can produce them to me in front of the judge

11.15 i went in

the judge was good, when i explained that i still have not recieved the SAR CCA AND THE CPR request after 3 months, and that the solicitor had the forms now did not sit well with the judge after reading through the original statement from DOCMAN about 2-3 months ago he asked the solicito if the requests had been done and all he could answer was no

so the judge turned to me and said as they were dragging their heels to such a long extent of time, he was immediately quashing the final order hearing and setting aside the whole case, so he fopund in my favour

i should recieve this confirmation in about 5 working days they reckon

when i do i will post it up hear for all to see

to say i am happy is understated

i must admit i was a bit apprehensive at first then so happy

so well done and thankyou DOCMAN to me you are legend now, i place you above POSTGGJ

thankyou thankyou thankyou

i now hope i am in a position to help others

well done

[mandyjayne]

Well done Bobbydog...

 

Arrow bite the dust yet again! Many congrats!

 

Im sure you will have the best nights sleep you've had in ages!

 

Well done...and Docman once again!

 

MJ:)

[maroondevo52]

Superb stuff, bobbydog, Docman & others

 

Thread moved to Legal Successes.

[squidward]

Subbing so I can find it again

 

Congratulations Bobydog!

Edited August 21, 2010 by citizenB
Title needed amending

[citizenB]

Congratulations, bobbydog.

Edited August 21, 2010 by citizenB
Title amended

[bobbydog]

i thank you all for your kind words of victory over these mprons but to date i haven't heard a thing from DOCMAN he is the person most i want to thank

Edited August 21, 2010 by citizenB

[mandyjayne]

Bobby

 

Docman was on here late last night...send him a PM he always gets them!!

 

regards

 

MJ

[Docman]

Hi bobbydog

 

I'm on holiday at the moment and have only intermittant access to the internet. I noted your success before I came away and was going to add my congratulations. I say YOUR success because you stood up to the other side when it counted. I may have helped to fashion the bullets but that's the easy part. Standing up for yourself in the firefight is what counts.

 

Well done again.

 

Doc

Edited August 21, 2010 by citizenB

[bobbydog]

well people

round two

so can i suggest this goes back to LEGAL ISSUES

have heard from bryan carters and they have replied to myy defence on POST 103

so battle hats on and away we go again

if any moderators know any legal eagles here on the forum can you please PM them to look in from time to time

Edited August 21, 2010 by citizenB

[citizenB]

today this dog had his day

i went to court arriving in good time to get myself aquainted with the surroundings

then the journeyman solicitor arrived and introduced himself to me and we went to a private room

he asked me how i was hoping things to go and i replied i am here to get a set aside and the final order to be cancelled

he the nsaid that the probabilities looked bleak for me

then he wanted to give me some paperwork relating to the case

and i stood my ground and said that if i wasn't good enough to have them sent to me by post then i do not want them now, he then said that he would only produce them in the court so i may as well take them now, i said NO you can produce them to me in front of the judge

11.15 i went in

the judge was good, when i explained that i still have not recieved the SAR CCA AND THE CPR request after 3 months, and that the solicitor had the forms now did not sit well with the judge after reading through the original statement from DOCMAN about 2-3 months ago he asked the solicito if the requests had been done and all he could answer was no

so the judge turned to me and said as they were dragging their heels to such a long extent of time, he was immediately quashing the final order hearing and setting aside the whole case, so he fopund in my favour

i should recieve this confirmation in about 5 working days they reckon

when i do i will post it up hear for all to see

to say i am happy is understated

i must admit i was a bit apprehensive at first then so happy

so well done and thankyou DOCMAN to me you are legend now, i place you above POSTGGJ

thankyou thankyou thankyou

i now hope i am in a position to help others

well done

 

Ummm, what is the point of them responding to something that has now been set aside. ? Have you received the Judgment from the court yet.

 

I would think all you need to do is write Carter a letter saying.. hang on a second. This was set aside by the Judge on DATE.

 

Perhaps you should also let us see what Carter has to say for himself.

Edited August 21, 2010 by citizenB

[bobbydog]

i certainly have recieved the judgement from the court

i recieved that last week

this came through today am starting to scan soon

Edited August 21, 2010 by citizenB
Title amended

[Docman]

Hi bobbydog

 

If the court set aside the judgment, did the judge order anything else? Can you post up the court order (minus your name etc)? I'm sure BC is reading the posts and will be able to identify you anyway.

 

Doc

[Docman]

bobbydog

 

I have just re read the thread to refresh my memory because as far as I remember, you hadn't filed a defence. This was your application to set aside and hence you filed a suggested a draft witness statement about 3 months ago. In anticipation that a rent-a-gob solicitor would turn up on 2 August, I suggested a draft defence to guide you almost as a skeleton argument (post #103) BUT as far as I can tell, you didn't file the defence. If you didn't, it looks like BC are responding to a draft defence on CAG and not something filed at court.

 

What idiots they will look before the Judge. All there is on the court file is just a general POC through Northampton, no documents exhibited as evidence, no defence lodged but the judgment has been set aside and then they file a response to a non-existent defence!

Edited August 21, 2010 by citizenB
typo