MBNA county court Summons " Help Please

[diddydicky]

i think you are giving too much of your ammunition away too early

 

by all means tell them that re contructed documents are not acceptable but do not tell them why!!

 

keep that for your skeletal argument in court

 

you need to check - i think it is CPR26- notice to adduce with regard to introducing heresay evidence- (which is what the reconstructed documents would be)

 

i used this in my recent case with mbna

 

but why tell them this BEFORE the hearing - which gives them chance to correct it? you need to use this IN COURT and AFTER that have introduced heresay evidence

 

In respect of “Hearsay” evidence the claimant seeks to rely upon re- constructed documents without compliance with the Documents In Court- Civil Evidence Act 1995 Inter Alia:-

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence is required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

 

Page 3 Of 10

 

 

The defence contends that the claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and the defendant would at trail have the opportunity to request the*permission of the court to question the credibility of any witness*relied upon by the claimant. Furthermore it is the defendants view that the sole witness for the claimant Miss xxxxx is a solicitor who is not employed by the claimant and who therefore could not be a competent witness in relation to the matters referred to above

 

 

The claimant is therefore seeking to obtain a summary judgement based on an alleged reconstructed agreement which has not been verified or challenged in any way as to it’s authenticity and which in any event would not be an Executed agreement

[diddydicky]

i have not had time to read the whole thread, however i would counsel against "skirting around the issue" as to whether you have a debt to the creditor

 

nor would i attempt to deny a debt exists- since if it is plain that you borrowed and used the creditors money then you will do your credibility no good whatsoever wince the creditor can easily show that you did so.

 

do not attempt to deny or "skirt around" that which is undeniable

 

ideally the fact that you acknowledge that there is a debt owed to the creditor- but that you dispute that it is "legally enforceable" should be at the top of your witness statement- to head off the question being asked. and since this is the whole point of the action

 

it is not for the judge to impose a moral judgement on a question of the legal enforceability of an agreement and if he/she does so they will play right into your hands in the form of an appeal there is already house of lords ruling on the fact that in the case of CCA's unjust enrichment does not apply

 

 

the judge is looking for the truthfulness and reliabilty of a witness (IMO) not someone who is being shifty and furtive and seeking to evade or "skirt around" questions

 

IMO

 

 

i

Edited June 23, 2010 by diddydicky

[diddydicky]

Im being taken to court so im thinking of contacting a solicitor. I wont do very well under pressure and i have no experience of this kind of matter.

 

However i have just read the above & i have to say i am laughing to myself, i will prepare what i am going to say, there are some good answers on that thread...lol

 

 

there are some "funny answers" on that thread- but they are not good

 

there is an old saying that you dont get a second chance to make a first impression

 

people make their judgements about others in a very short space of time

 

half the battle in court is winning the judge over to your side

 

be a clever dick or start "throwing back" smart arse retorts to the question and dont be surprised if you get your donkey filleted

 

there is only ONE answer to did you borrow/spend/use the money and that is (assuming that you did"

 

YES

 

that is why you should put it RIGHT AT THE TOP of your witness statement

 

you do not deny entering into an agreement with the claimant- but you deny that the agreement is or was a properly exexcuted and.or legally enforceable agreement

 

 

If you make the declaration up front- you will not be embarrased by the question if it comes your way- and at the same time you are making the judge aware that you are looking for a legal ruling- not a moral one

 

IMO

[diddydicky]

you do not deny entering into an agreement with the claimant- but you deny that the agreement is or was a properly exexcuted and.or legally enforceable agreement

If you are comfortable with this, then it is a good strategy. However I would ALWAYS qualify any admission I made in court as your word is extremely powerful as it is your testimony. Once you admit something, the other side no longer has to prove the facts thereof.

 

..........................

 

 

unless you are in the 1% of caggers who definately did not use the funds the creditor advanced- or use their credit card to make purchases- there would NEVER be any doubt or chance of you proving that you never entered into an agreement- all the evidence of cash machine withdrawals- credit card slips, payment of funds to a supplier on your signature etc. therefore in the vast majority of cases (save for unlawful charges etc) the claimant is not seeking to prove that you borrowed money or used their funds- they are merely trying to prove that the agreement which allowed you to do so is properly executed, and/or legally enforceable

 

what you are admitting is the truth- that you DID enter into "an agreement" with the creditor

 

the ONLY question before the court (usually) is whether the agreement you entered into was a properly executed agreement and.or whether - due to some defect- it is legally enforceable

 

each to his own, of course

[diddydicky]

Hi...the aq is dated the 25/06/10 but the postage stamp is the 28/06/10, i have until the 12/07/10 to send it back to my local County Court.

 

N149 form.

 

DD

 

 

dizzie, you are a LIP so the court WILL cut you some slack in presenting your defence and arguments

 

how you perform in court- nervous- is not so important as you ability to UNDERSTAND the arguments that the creditor is putting forward and your rebuttals

 

dont worry about the nerves=- but DO worry about thinking you will be able to recite arguments "parrott fashion" with no idea what you are talking about

 

i have the feeling you DO understand the arguments and you are worred only by nerves

 

all i can say is "have a go- you will probably be pleasantly surprised by the relaxed non confrontational atmosphere

 

just remember to put your arguments and counter suggestions as to what the other side have produced in POLITE matter of fact terms and RESIST the temptation to make accusations as to their MOTIVES ( try not to use words like fraud , illegal and deliberate - remember you may well know WHAT they did (or did not) do - but you cannot possibly know WHAT their motives were so do not show yourself up by attempting to suggest to the court that you do know their motives

 

just keep on reading and understanding the arguments you are going to use and give it a go

 

 

if you DONT understand the arguments then my advice is get a solicitor or dont bother defending yourself unless you are happy to give it a go and incurr costs (not much in a small claims- but into 4 figures otherwise)

[diddydicky]

forget the term "cross examined" there are no wigs- or dramatic ironside inquisitions

 

if you have said something that the other side feels is wrong or needs further clarification they will simply ASK YOU another or further questions

 

we are talking about a normal 3 way conversation around a table with three people- not the spanish inquisition!!

[diddydicky]

Its not in a normal Court Room then! So i have to sit round a table with the opposition, fantastic lol

 

 

yes, the judge will be one side of the desk and you and your opponent will sit beside each other on the other side

 

in most cases the sol acting for the creditor will be a locum

 

in many cases they will only have got the paperwork the day before

 

so dont take your frustrations out on them- they are just doing their job

[diddydicky]

im confused! everything i have said should make a person feel more comfortable with the situation........why does it make you feel more nervous than a formal courtroom setting?

 

the fact that many locum solicitors only get the paperwork the day before means that they are ILL PREPARED and wont fully understand the facts of the matter like you will

 

a HUGE advantage for you

[diddydicky]

I will do just that write back to them...iv been reading information on SAR & i now understand my rights. Thanks guys.

 

you are not entitled- under a SAR to receive a copy of your agreement- or of any other document if they do not wish to send it!

 

what you are "entitled to" is any and all INFORMATION that they hold about you (not the medium upon which it is stored)

 

many creditors do supply a copy of the agreement but you have no right to demand it as part of the SAR

 

 

 

=================================

 

for a s77/79 request you are entitled to a copy of the executed credit agreement, any document referred to in it and a signed statement of account.

 

If the executed agreement is an amended or varied agreement- then you are also entitled to a copy of the original agreement (the enabling agreement) as well.

 

all documents provided to you must be "easily legible"

[diddydicky]

they should have provided a signed statement of account with the s77/9 response - so you should chase that up

 

the response to the SAR should have provided you will details of the account from its inception to the time of the SAR and the details of all payments charges and receipts into and out of the account

 

what you CANNOT infer- from their failure to provide a copy of the agreement- is that they do not have it- although the fact that they HAVE sent you a copy of an application form is a pretty safe bet that that is all they have and that they are relying on the application form as an agreement

 

if the application is signed by you and contains all of the prescribed terms (whether or not in the prescribed format) then it may be an enforceable agreement

[diddydicky]

dont get too bogged down and reliant upon what the amount in their POC is- if it is wrong- it is almost certain that the judge will allow them to amend it rather than strike out the claim

 

you need to be SEEN to be attempting to resolve any dispute as to the amount claimed- which means asking for the information to enable you to do so

 

if you have not already sent a SAR you could simply write to the claimant and ask for a full statement of account

[diddydicky]

Yes, so you must write back to them, referring to the original SAR, tell them that there is information missing and they have 7 - 10 days ( Your choice ) to supply this information otherwise you will report to Data Commissioner and if they try anything on in court, this will be highlighted.

 

£5000 fine i believe - for failure to comply!!

 

the OFT have today place a huge fine on an insurer for losing customer records so perhaps they have new tory caps on their teeth and have started to bite!

[diddydicky]

Andy,

 

looking at the WS i guess no DN was received

 

i think it might be an idea if she actually makes an positive accusation

 

"it is within my knowledge, from researching other similar cases which involve the claimant- that their Default Notices s from this period- were often defective default Notices which did not comply with the prescribed legislation both as to their format, wording and amount of time that

was allowed to the recipient to remedy any alleged default

 

It is my contention that the claimant, having in fact failed in other cases to win the day on these default notices- is now deliberately changing their tactics from providing what is an invalid Default Notice- to that of not providing one at all- so that their failings are not brought to the attention of the court

 

in any event - i think it is vital that she makes a positive statement to the effect that she has never received a default notice from the creditor- the omission of such a positive pleading would be fatal to her defence- i believe

[diddydicky]

i was referrring to DD's witness statement from above- post 611

 

i formed the opinion that she is denying ever having received a DN- in which case it is important that she makes a positive statement to that effect!

 

(if i misread the situation i apologise)

[diddydicky]

ahhh just seen it in para 3

 

i would add

 

 

"or at all" to the sentence- so that she is asserting that she did not receive a DN of ANY kind (effective or otherwise) from the claimant

 

 

 

 

 

 

 

 

 

 

in the WS (611) para 2

 

if the claimant UNLAWFULLY terminated the agreement the day before starting the proceedings- then this should be stated- as should the fact of her ACCEPTANCE of their unlawful repudiation- since the fact of their unlawful act is of no effect until she "elects" to accept or not

[diddydicky]

para 4 i would amend to " i will contend at trial that the claimant etc etc DID NOT serve a default notice contrary to etc etc

[diddydicky]

para 8 - i would add something along the lines that

 

notwithstanding the foregoing- even were the court persuaded that the exhibited screenshot was indicative of the fact that a "default notice" was in fact produced by the claimants systems- it cannot evidence the content of the default notice or its compliance with the prescribed format.

[diddydicky]

important- at the hearing- laura tipping will NOT attend- therefore at the hearing itself you must ensure that you refer to the fact that the claimants only witness in applying to strike out-/SJ is a solicitor and not an employee of the claimant company and that the witness statement she has made is no more than a "template" statement which is identical to others than you have seen from this witness in your research in other cases *** and that many of the matters referred to within the statmenent cannot be within her personal knowledge and are therefore hearsay and therefore need to be challenged at trial

 

 

What would be particularly damaging to the credibility of her statement would be the para in which she alleges you are being speculative (and which she includes in EVERY statement)

 

 

just as these morons claim that defendants are using "stock" defences from the internet- so you can claim that miss tipping is using "stock" witness statements in which she seeks to envince county courts that every debtor is an opportunist- safe (they think) in the knowledge that the defendant will not be able to obtain evidence of this "ploy" from other defendants

 

** (if you want to pm me i would be happy to supply you with a similar statement from miss tipping together with a witness statement)

[diddydicky]

Diddy have you got time to Draft? using my example, we need this to go tomorrow, I have others to do day also for tomorrow.

 

 

Regards

 

Andy

 

im on my lunch break at the moment and will be out till late- but if she gives me a fax number i can fax a copy of Miss tippings identical statement and a ws to cover it- although she will not need it at this hearing- in fact better to say that she will produce this evidence at trial

[diddydicky]

you wont need them tomorrow- just the fact that you will be obtaining evidence from at least one other defendant in similar circumstances- to produce at trial and where the witness statement of miss tipping is clearly a "pro forma" with only the names and dates changed

 

and the fact that she is not in court to be questioned as to her evidence

 

 

 

if you go to http://www.consumeractiongroup.co.uk/forum/showthread.php?242373-MBNA-Restons-for-Diddydicky-case&highlight=

 

MBNA Restons for diddy dicky case

 

you can amend my WS (which saw restons off) to suit your own case

 

technically the WS you will see is not strictly right- in that it contains also the defence- but courts will give some slack to you as a LIP

 

 

Restons will outline the case and then the judge will ask you to present your defence to the application

 

then Restons will respond to what you have said and they will refer to CAREY and mcGuffick

 

therefore it is important that at the end of your arguments you then say to the court

 

sir, my opponent will no doubt refer to the cases of Carey and McGuffic- so may i just outline why i believe that neither of these decisions impact upon this case

 

then give the rebuttal of the carey and mcguffic cases as not being relevant - thus taking the wind out of their sails

[diddydicky]

also, at then end of the case (which i am sure the court will dismiss their application) they will apply for costs

 

you shold suggest to the court that in view of their speculative application- costs should not be allowed

 

pay partiucular attention to the part of my defence with regard to the "hereesay nature" of the re constructed agreement and the fact that you should have the opportunitry at trial to test the source of this evidence

[diddydicky]

with regards to the DN- are you making any positive assertions as to

 

a/ whether or not you ever received it?

 

or

 

b/ that you received a DN and it was not compliant?

 

when did the claimant commence proceedings against you?

[diddydicky]

Also i read somewhere on this forum that the new government are bringing in new laws that charging orders cannot be put into place on debts under £25k is this correct?

 

that would be interesting- any reference to the origin of this?

[diddydicky]

you may not have "all the facts of the case" andy- i suggest you pm DD and ask her to what i refer-

[diddydicky]

In answer to your PM- re para 5 - the statement is fine- is simply states that you did not receive and EFFECTIVE default notice- not that you did not receive one at all- so that is OK

 

if you have the envelope then you should be exhibiting it.together with the DN as evidence that it was posted second class- you should make a POSITIVE assertion as to the ACTUAL date you received it and then you should show how many days "short" it was (1)

 

did you make any payments of any kind to them after receiving the DN and before legal proceedings? hopefully not!

 

in which case- in the absence of not actually positively accepting their unlawful repudiation when they demanded payment in full- your WS now needs to be worded in such a way that you refer to your acceptance of their unlawful repudiation as being taken " as read"

 

(it is the "normal" convention- that silence is taken to mean that you elected NOT to accept the unlawful repudiation- you must therefore argue that as a LIP you were unaware of that convention

 

as i have said privately- it is worth a go in small claims- but i would not advise running the defence in fast track.