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CC notice - 5 days to reply re CPR 3.4


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Hello there.

 

I've started a new thread because I think my old one is too long and has lost it's relevance a bit. For background here it is - http://www.consumeractiongroup.co.uk/forum/legal-issues/183190-shoosmiths-cc-summons-cca.html

 

The long and short of it is I've had a stayed case at NCC for about a year waiting for a response from the litigant to my embarrassed defence;

 

i've finally received it, an application noticelink3.gif from Northampton CC. It States that the claimant's solicitor has asked the court to;

 

1 Lift the stay

2 Claim to be transfered to local CC

3 Defence to be struck out pursuant to CPR 3.4 (2) as it discloses no reasonable grounds for defending the claim

 

No statements or any other docs attached. It states it's to be at a hearing and it will last 45mins. It's signed by a case handler.

 

Now I understand that part three of that is a common tactic to try and get a quick judgement in their favour. Can anyone help me please?

 

It says that under Rule 23.10 I can apply to have it set asidelink3.gif, varied or stayed. I must respond within seven days of service of this order with was 14th July. So 5 days. As an aside I've still not received an AQ from the court.

 

All help most gratefully received.

 

Regards

 

A&S

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A&S

 

Its Shoos tactics (and I think a number of other solicitors) not to respond within the 28 days after a defence has been lodged following a claim being filed electronically through Northampton. When the case is stayed, they wait until they are ready and then apply for the stay to be lifted. The application is often combined with an application for Summary Judgment. Has that happened here?

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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A&S

 

Its Shoos tactics (and I think a number of other solicitors) not to respond within the 28 days after a defence has been lodged following a claim being filed electronically through Northampton. When the case is stayed, they wait until they are ready and then apply for the stay to be lifted. The application is often combined with an application for Summary Judgment. Has that happened here?

 

Hi There

 

Many thanks for your reply.

 

They applied for three things;

 

1. Lift Stay

2. Claim transferred to local CC

3. Defence be struck out pursuant to CPR 3.4 (2) - no reasonable defence

 

That's it. I guess that's an application for summary judgement but at my local CC rather than NCC.

 

Shall I apply to have it struck out under N244? It doesn't really seem applicable. Do I respond at all or just wait for the AQ from my local CC and then a court date?

 

Regards

 

A&S

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Hi There

 

Many thanks for your reply.

 

They applied for three things;

 

1. Lift Stay

2. Claim transferred to local CC

3. Defence be struck out pursuant to CPR 3.4 (2) - no reasonable defence

 

That's it. I guess that's an application for summary judgement but at my local CC rather than NCC.

 

Shall I apply to have it struck out under N244? It doesn't really seem applicable. Do I respond at all or just wait for the AQ from my local CC and then a court date?

 

Regards

 

A&S

 

Right then

 

I've looked at this in more detail and looked up what CPR 3.4 and CPR 23.10 mean. They're both procedural and basically I only need to reply if I want to set aside, vary it or get it stayed, not really applicable in my case.

 

The request to have it moved to my local CC was granted as was the request for the stay to be lifted. However it makes no menton of the claim being struck out. I will call NCC to check these details and there significance a.s.a.p. I guess I'll get a date soonish stating my court date. I'll need some help with my defence. Here's a link to what I sent originally http://www.consumeractiongroup.co.uk/forum/legal-issues/183190-shoosmiths-cc-summons-cca-6.html#post2028147. It's an embarrassed defence and highlights the mistakes in the CCA rendering it unenforceable.

 

Any thoughts?

 

A&S

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A quick update

 

Just spoke to NCC to check where my case stands. As stated earlier the stay was lifted and it has been directed to be moved to my local CC. They did confirm however that the request for summary judgement was denied.

 

Finally I've got to amend my defence as I did not include any details about the overdraft claim against me made in the POC. I need to speak to my local CC about that. That's because I made a counterclaim of £5000 for excess overdraft charges. I have a letter from the Bank saying that's all stayed pending them getting back to me after the high court judegement. Needless to say I've heard nothing from them and no mention about it from S'miths. They've only talked about the Loan outstanding.

 

Frankly if there's no chance of the O/D charges being repaid then I'll have to pay that, in fact I'm happy to settle that excluding penalties. What I need to do is to make sure it's seperate from the part 36 claim so that a very small amount does not come with a huge bill from the banks solicitors.

 

Does that sound feasible? Any advice? Indeed is there anybody out there!

 

Regards

 

A&S

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Have you applied for SAR from original bank?

so you can add all the charges up and counterclaim.

Regardless of the High court 'decision'. you claim it back.

 

Hi there

 

Yep that was all done about 18 months ago. With interest it come in at over £5k.

 

Regards

 

A&S

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Just my opinion, but if the creditor has failed to provide you with an agreement detailing any interest charges you were liable to under the overdraft, then I would argue that any interest that has been charged was unlawful, and therefore reclaimable along with other charges that have been added.

 

Just my 2p worth, but hopefully someone more knowledgeable regarding that argument will comment!

 

Cheers

Rob

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Just my opinion, but if the creditor has failed to provide you with an agreement detailing any interest charges you were liable to under the overdraft, then I would argue that any interest that has been charged was unlawful, and therefore reclaimable along with other charges that have been added.

 

Just my 2p worth, but hopefully someone more knowledgeable regarding that argument will comment!

 

Cheers

Rob

 

All that stuff was detailed very well. I will not however pay the extra £250+ in charges that they've put on the O/D, almost doubling it, since it was closed.

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A quick update

 

Just spoke to NCC to check where my case stands. As stated earlier the stay was lifted and it has been directed to be moved to my local CC. They did confirm however that the request for summary judgement was denied.

 

Finally I've got to amend my defence as I did not include any details about the overdraft claim against me made in the POC. I need to speak to my local CC about that. That's because I made a counterclaim of £5000 for excess overdraft charges. I have a letter from the Bank saying that's all stayed pending them getting back to me after the high court judegement. Needless to say I've heard nothing from them and no mention about it from S'miths. They've only talked about the Loan outstanding.

 

Frankly if there's no chance of the O/D charges being repaid then I'll have to pay that, in fact I'm happy to settle that excluding penalties. What I need to do is to make sure it's seperate from the part 36 claim so that a very small amount does not come with a huge bill from the banks solicitors.

 

Does that sound feasible? Any advice? Indeed is there anybody out there!

 

Regards

 

A&S

 

Bump

 

Any Advice on this as the Part 36 means that in the event of losing I'm liable to costs. Here's a link to the part 36 offer - http://www.consumeractiongroup.co.uk/forum/legal-issues/183190-shoosmiths-cc-summons-cca.html#post2413322

 

Would it be wise to write to S'miths to discuss the O/D as a seperate issue as I have a letter saying it's stayed?

 

Regards

 

A&S

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Bump

 

Any Advice on this as the Part 36 means that in the event of losing I'm liable to costs. Here's a link to the part 36 offer - http://www.consumeractiongroup.co.uk/forum/legal-issues/183190-shoosmiths-cc-summons-cca.html#post2413322

 

Would it be wise to write to S'miths to discuss the O/D as a seperate issue as I have a letter saying it's stayed?

 

Regards

 

A&S

 

Anyone

 

I'm a little bit concerned about how to proceed about the O/D part of the POC. I'm happy with my defence for the loan. However I'm not sure how to proceed about the O/D. I have counter-claimed for excess charges and I have a letter saying the bank will deal with it, after the test case, and get back to me. However I've heard nothing from them. Can I use that in my defence to state that the O/D claim should not be included on the POC and dealt with by S'smiths. As far as I'm concerned it's still stayed and I've heard nothing to the contrary.

 

Like I said above I don't mind paying it, as long as S'miths don't say that, because I accepted liability for the O/D that I lost, and so must pay their costs as per Part 36.

 

Regards

 

A&S

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  • 1 month later...

Right then, it's put up or shut up time. I've received a ruling from the district judge that;'The court proposes dealing with the claimants application to strike out and any representations thereon should be filed by the defendant on or before 4th Sept 2010.

 

Attached was a summary from Shoosmith (para?) legal secretary explaning why my defence is not relevant in this case and why they did not need to put details on the POC, here's a link to my defence; http://www.consumeractiongroup.co.uk/forum/legal-issues/183190-shoosmiths-cc-summons-cca-6.html#post2028147. It's an embarrassed defence that Shakey helped me with. This is link to photobucket to show the CCA and how it's been incorrectly filled out; http://s644.photobucket.com/albums/uu165/ASphotos11309/ . The main leg it stands on is that the agreement has be filed out incorrectly and so is 'unenforceable'. Also included was a copy of the CCA, payment schedule and DNs.

 

I could really do with some help and guidance from you trainee solicitors, solicitors or just very well informed laymen because if I don't show up prepared they'll hand it to me.

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A&S

 

I can't read all your photobucket postings as their server is down but I will read them later. I have re-read your defence and it is good which is why I suspect Shoos have gone for a summary judgment hearing. I assume you posted their application and witness statement on photobucket?

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Docman

 

Thanks for that it really is very much appreciated. No I haven't but I will sometime this morning, it will take me a while to edit out the more personal info.

 

Thanks again

 

A&S

 

Right then I've put those docs on Photobucket for you. For some reason it won't let me login to my old account and so I've had to set up another in conjunction with my first. So this is the link for the Witness Statement, Application notice and Gen Form of Judgement order. The KAP1 referred to in the WS is about 30 pages and is a summary of my account, various letters demanding payment and default notices and the photcopied CCA. It's such a drag to put up another 30 pages that it may be better for all for me to knock up a PDF doc and send it to you. I have found an original copy of my CCA front page which shows the figures much more clearly than the photocopy. It's in the link. http://s866.photobucket.com/albums/ab226/asphotos2/. Please continue to use the other link for previous docs; http://s644.photobucket.com/albums/uu165/ASphotos11309/.

 

I've attached a letter from the bank stating that my O/D charges claim is stayed. I've heard nothing since about it being looked into. With that in mind I'm not sure why the O/D issue is included in the POC. Indeed the amount now of £600 was originaly only on a £200 O/D limit. I'm prepared to pay that and always have been, it's just never been raised because of the stay. They have made a part 36 claim against me, stating that I pay theirs costs if I lose, I suspect that the O/D issue is another way of them trying to ensure they get their costs at least.

 

So it seems to me my defence is that the loan is unenforceable due to it's terms being completed incorrectly and that I'm prepared to pay the O/D (though not 3x the orginal sum), if appropriate after they look into my claim, as it's a completely different issue. Is that reasonable? They're never asked about the O/D or mentioned it. It seems to have been put in with the Loan.

 

I hope that makes sense. Thanks.

 

A&S

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Thanks A&S. I'll have a good read of the WS tonight and get back to you tomorrow.

 

Doc

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Hi A&S

 

I read the witness statement last night. The 'case handler' from Shoos should apply for a job as a comedy sketch writer, I laughed so much. You most serious transgression is that you defended yourself with a defence taken from the internet (ie CAG). WOW!!

 

You need to draft a robust witness statement in response, addressing every point raised. Have you ideas about what you need to include? It looks like you have until the end of next week to file at court.

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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They do seem to think they have a right to intimidate because they think you're ignorant of the law. I have no idea how to go about that, though I'll give it a go. Obviously I'm quite happy to knock one up if you can suggest a pro forma I could work from. There must be considerable precedent of this on this site somewhere.

 

Regards

 

A&S

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Hi A&S

 

Probably not as your response has to be personal to your circumstances. As a witness statement, you head it up with the court name [NORTHAMPTON COUNTY COURT, not 'BULK CENTRE'] and number and also the same parties, as you did for the defence. You just change the title to 'Witness Statement' instead of 'Defence' and then start...

 

I, Antonio& Shylock, of xx somewhere in the universe [insert your full address], am the defendant in this matter and make this witness statment in response to the claimant's application to lift the Stay and strike out the defence.

 

1. [YOU NOW NEED TO GO THROUGH THE OTHER SIDE'S WS AND PUT DOWN YOUR SIDE OF THINGS. DON'T WORRY ABOUT THE 'LEGAL JARGON' AT THIS STAGE. JUST GET DOWN YOUR UNDERSTANDING. REMEMBER AT THE END OF THE DAY YOU WILL BE THE ONE IN COURT SO YOU NEED TO UNDERSTAND WHAT IS BEING WRITTEN. THE BEST PLACE TO START IS WITH YOUR OWN WORDS].

 

2. ditto

 

3. ditto

 

[AND THEN AT THE END YOU NEED TO INSERT THE 'STATEMENT OF TRUTH' AD SIGN THE STATEMENT']

 

 

Have a go at at first draft.

Edited by Docman
Typo

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Right then here it is, though really I feels like a complete mess to me.

 

In the XXXXX County Court

Claim number XXXXXXXX

 

 

 

 

Between

National Westminster Bank PLC- Claimant

 

and

 

 

Mr XXXXXXXXX- Defendant

 

 

 

Witness Statement

1. I XXXXXXXX of XXXXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim and make this witness statement in response to the claimants application to lift the stay and strike out the defence.

 

The Claim

2. It was my understanding that the Claim Shoosmiths were making on their client’s behalf was merely for the Loan account referred to in 3(a). I believed that the issue raised regarding the Current Account, referred to in 3(b) of the witness statement, was being dealt with directly with National Westminster Bank, as per my claim for excess bank charges. I enclose correspondence from National Westminster Bank, dated 16/12/08, acknowledging receipt of the claim.

It states that the complaint has been registered and is ‘suspended’ until the outcome of the test case and that if it has not been dealt with before then they will deal with it as quickly as possible at that time.

I have heard nothing from National Westminster Bank about this issue since the correspondence attached. I do not contend that I owed an original overdraft sum of £200. I was always willing to settle this debt once my claim had been dealt with, as I understood that this was the process. However a further £400 in charges has been added since then, which I feel should be waived or at least a settlement agreed upon.

The Defence

The Defendant stands by the defence as at that time. The Defendant felt that the points raised were most relevant.

 

The Particulars of Claim

It was my understanding that I was entitled to see the documents that formed the basis of the claim against me. I was putting the Claimant on notice that I’d require that to be complied with.

Pre – Action Conduct

 

In the build up to this action, I had raised a formal dispute with National Westminster Bank PLC. On the 11/11/2008 I wrote to National Westminster Bank PLC requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

This request was received on the 18/12/2008. (A copy of the correspondence is attached to this defence marked CP)

9 The Document stated to be the Letter Before Action, dated as 12/12.2008, was not clearly stated as such. As I’d had a number of letters before referring to court proceedings I did not realise it as such.

 

10 The Defendant was advised on the 18/12/2008 that no further action would be taken until 30/1/2009. Therefore I awaited further correspondence.

11 On 23/12/2008 the claimant supplied a copy of the Credit Agreement, annexed to this defence marked exhibit CP2, which was of extremely poor quality but which indicated that the amount of credit, which is a prescribed term, had been seriously mis-stated.

The Request for Disclosure

 

13. Further to the case, on 18/02/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to legible copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

The claimant responded on the 10/3/2009 as stated. However at the time and in the absence of the documents I felt it was prudent to file a defence by the court deadline. Failure to do so may have been construed as acceptance of liability.

14 On the 26/3/2009 I received an identical copy of the Credit Agreement sent on the 23/12/09 which had no addressed the legibility issues. Statements of account were included but no default notices or termination notices as per my CPR 18 request.

Execution of the Loan Agreement

The importance of a copy of the credit agreement and its production before the court

 

 

15 The defendant felt it was necessary to explain the basis of his defence in some detail. The Defendant believes it to be most relevant to his case.

16 The Defendant was setting out in detail the basis of the defence.

17 The loan agreement fails to comply with the strict requirements of these documents as referred to in the Defence Statement. The defendant notes that the Claimant does not address point 18 of the Defence document in their Witness Statement.

18. Furthermore I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

"33 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 (with the benefit of legal advice if necessary) 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. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

It’s the Defendants contention that the terms have been mis-stated as such;

2© Insurance Loan – Two figures are stated in the same box 4778 and 19,500. It is not clear which term applies.

3 The Credit {2(a)+2(b)+2© – this is stated as 19,500 but when you add the terms on the Credit Agreement together they equal either 24,278 or 39,000. Depending on which figure you select in section 2©

6 Total Charge for Credit (4+5) - stated as 30,413.04, when according to the terms it should read 6135.04

7 The Total Amount Payable (3+6) - reads 30413.04, when the sum of points 3 (19500) and 6 (30413.04) as per the Credit Agreement equals 49,913.04.

Furthermore it is not clear if insurance has been added to the amount as per section 2© and if so what portion on the loan repayment this constitutes, as this subsection of section 9 has been left completely blank.

18 The Defendant makes no reference to stating that the document is not signed, merely highlighting one of a number of points to highlight the need for attention to detail whilst completing the loan agreement and protecting the loanees rights.

19 The defendant believes he has a sound defence in law and that the discretion of the courts is this matter is therefore a critical point to raise.

 

 

The Need for a Default notice

 

20 Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement. This document has been requested on a number of occasions but has not been forthcoming as admitted in the Claimants witness statement. Indeed the Claimant’s not even able to produce a copy of the Default Notice.

21 Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

(2) The court may strike out a statement of case if it appears to the court

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

22 The defendant believes that the argument presented are valid and that the defence not be struck out but that the claim should be struck out.

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

 

 

 

 

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I've amended the below WS to refer to the Defendant throughout instead of I. Also I've amended it to reference all the docs I refer to as WS1 through to WS4. I'm introducing two new docs (WS1 & WS4) that were not referenced in my defence. I assume I need to introduce them here.

 

 

In the XXXXXXX County Court

Claim number XXXXXXXX

 

 

 

 

 

 

Between

 

National Westminster Bank PLC- Claimant

 

and

 

 

Mr XXXXXXXX- Defendant

 

 

 

Witness Statement

 

 

1. I XXXXXXXX of XXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim and make this witness statement in response to the claimants application to lift the stay and strike out the defence.

 

The Claim

 

2. It was my understanding that the Claim Shoosmiths were making on their client’s behalf was merely for the Loan account referred to in 3(a). The defendant believed that the issue raised regarding the Current Account, referred to in 3(b) of the witness statement, was being dealt with directly with National Westminster Bank, as per the claim for excess bank charges. Enclose marked WS1 is correspondence from National Westminster Bank, dated 16/12/08, acknowledging receipt of the claim.

 

It states that the complaint has been registered and is ‘suspended’ until the outcome of the test case and that if it has not been dealt with before then they will deal with it as quickly as possible at that time.

 

The Defendant has heard nothing from National Westminster Bank about this issue since the correspondence attached. The Defendant does not contend that he owed an original overdraft sum of £200. The defendant was always willing to settle this debt once his claim had been dealt with, as The Defendant understood that this was the process. However a further £400 in charges has been added since then, which the Defendant believes should be waived or at least a settlement agreed upon.

 

The Defence

 

The Defendant stands by the defence as at that time. The Defendant felt that the points raised were most relevant.

 

The Particulars of Claim

 

It was the Defendants understanding that he was entitled to see the documents that formed the basis of the claim against him. The Defendant was putting the Claimant on notice that he’d require that to be complied with.

 

 

Pre – Action Conduct

 

In the build up to this action, I had raised a formal dispute with National Westminster Bank PLC. On the 11/11/2008 I wrote to National Westminster Bank PLC requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 .

 

This request was received on the 18/12/2008. (A copy of the correspondence is attached to this Witness Statement marked WS2)

 

9 The Document stated to be the Letter Before Action, dated as 12/12/2008, was not clearly stated as such. As the Defendant had a number of letters before referring to court proceedings he did not realise it as such.

 

 

10 The Defendant was advised on the 18/12/2008 that no further action would be taken until 30/1/2009. Therefore the Defendant awaited further correspondence.

 

11 On 23/12/2008 the claimant supplied a copy of the Credit Agreement, annexed to this Witness Statement marked exhibit WS3, which was of extremely poor quality but which indicated that the amount of credit, which is a prescribed term, had been seriously mis-stated.

 

 

The Request for Disclosure

 

13. Further to the case, on 18/02/2009 the Defendant requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to legible copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

The claimant responded on the 10/3/2009 as stated. However at the time and in the absence of the documents the Defendant felt it was prudent to file a defence by the court deadline, which was 13/3/09. Failure to do so may have been construed as acceptance of liability.

 

14 On the 26/3/2009 the Defendant received an identical copy of the Credit Agreement sent on the 23/12/09 which had not addressed the legibility issues. Statements of account were included but no Default Notices or Termination Notices as per my CPR 18 request.

Execution of the Loan Agreement

 

The importance of a copy of the credit agreement and its production before the court

 

 

 

15 The defendant felt it was necessary to explain the basis of his defence in some detail. The Defendant believes it to be most relevant to his case.

 

16 The Defendant was setting out in detail the basis of the defence.

 

17 The loan agreement fails to comply with the strict requirements of these documents as referred to in the Defence Statement. The defendant notes that the Claimant does not address point 18 of the Defence document in their Witness Statement.

 

18. Furthermore I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 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 (with the benefit of legal advice if necessary) 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. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

It’s the Defendants contention that the terms have been mis-stated as such, see attached Credit Agreement WS4;

 

2© Insurance Loan – Two figures are stated in the same box 4,778 and 19,500. It is not clear which term applies.

 

3 The Credit {2(a)+2(b)+2© – this is stated as 19,500 but when you add the terms on the Credit Agreement together they equal either 24,278 or 39,000. Depending on which figure you select in section 2©

 

6 Total Charge for Credit (4+5) - stated as 30,413.04, when according to the terms it should read 6,135.04

 

7 The Total Amount Payable (3+6) - reads 30,413.04, when the sum of points 3 (19,500) and 6 (30,413.04) as per the Credit Agreement equals 49,913.04.

 

Furthermore it is not clear if insurance has been added to the amount as per section 2© and if so what portion on the loan repayment this constitutes, as this subsection of section 9 has been left completely blank.

 

The Defendant believes that it is clear that the Credit Agreement has been completed incorrectly and the terms mis-stated and as such the Loan Agreement is made unenforceable.

 

18 The Defendant makes no reference to stating that the document is not signed, merely highlighting one of a number of points to highlight the need for attention to detail, whilst completing the loan agreement and protecting the loanees rights.

 

19 The defendant believes he has a sound defence in law and that the discretion of the courts is this matter is therefore a critical point to raise.

 

 

 

The Need for a Default notice

 

20 Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement. This document has been requested on a number of occasions but has not been forthcoming as admitted in the Claimants witness statement. Indeed the Claimant’s not even able to produce a copy of the Default Notice.

 

21 Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

(2) The court may strike out a statement of case if it appears to the court

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

22 The defendant believes that the arguments presented are valid and that the defence not be struck out but that the claim should be struck out.

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

Edited by Antonio&Shylock
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Bump.

 

I've amended the below WS to refer to the Defendant throughout instead of I. Also I've amended it to reference all the docs I refer to as WS1 through to WS4. I'm introducing two new docs (WS1 & WS4) that were not referenced in my defence. I assume I need to introduce them here.

 

 

In the XXXXXXX County Court

Claim number XXXXXXXX

 

 

 

 

 

 

Between

 

National Westminster Bank PLC- Claimant

 

and

 

 

Mr XXXXXXXX- Defendant

 

 

 

Witness Statement

 

 

1. I XXXXXXXX of XXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim and make this witness statement in response to the claimants application to lift the stay and strike out the defence.

 

The Claim

 

2. It was my understanding that the Claim Shoosmiths were making on their client’s behalf was merely for the Loan account referred to in 3(a). The defendant believed that the issue raised regarding the Current Account, referred to in 3(b) of the witness statement, was being dealt with directly with National Westminster Bank, as per the claim for excess bank charges. Enclose marked WS1 is correspondence from National Westminster Bank, dated 16/12/08, acknowledging receipt of the claim.

 

It states that the complaint has been registered and is ‘suspended’ until the outcome of the test case and that if it has not been dealt with before then they will deal with it as quickly as possible at that time.

 

The Defendant has heard nothing from National Westminster Bank about this issue since the correspondence attached. The Defendant does not contend that he owed an original overdraft sum of £200. The defendant was always willing to settle this debt once his claim had been dealt with, as The Defendant understood that this was the process. However a further £400 in charges has been added since then, which the Defendant believes should be waived or at least a settlement agreed upon.

 

The Defence

 

The Defendant stands by the defence as at that time. The Defendant felt that the points raised were most relevant.

 

The Particulars of Claim

 

It was the Defendants understanding that he was entitled to see the documents that formed the basis of the claim against him. The Defendant was putting the Claimant on notice that he’d require that to be complied with.

 

 

Pre – Action Conduct

 

In the build up to this action, I had raised a formal dispute with National Westminster Bank PLC. On the 11/11/2008 I wrote to National Westminster Bank PLC requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 .

 

This request was received on the 18/12/2008. (A copy of the correspondence is attached to this Witness Statement marked WS2)

 

9 The Document stated to be the Letter Before Action, dated as 12/12/2008, was not clearly stated as such. As the Defendant had a number of letters before referring to court proceedings he did not realise it as such.

 

 

10 The Defendant was advised on the 18/12/2008 that no further action would be taken until 30/1/2009. Therefore the Defendant awaited further correspondence.

 

11 On 23/12/2008 the claimant supplied a copy of the Credit Agreement, annexed to this Witness Statement marked exhibit WS3, which was of extremely poor quality but which indicated that the amount of credit, which is a prescribed term, had been seriously mis-stated.

 

 

The Request for Disclosure

 

13. Further to the case, on 18/02/2009 the Defendant requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to legible copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

The claimant responded on the 10/3/2009 as stated. However at the time and in the absence of the documents the Defendant felt it was prudent to file a defence by the court deadline, which was 13/3/09. Failure to do so may have been construed as acceptance of liability.

 

14 On the 26/3/2009 the Defendant received an identical copy of the Credit Agreement sent on the 23/12/09 which had not addressed the legibility issues. Statements of account were included but no Default Notices or Termination Notices as per my CPR 18 request.

Execution of the Loan Agreement

 

The importance of a copy of the credit agreement and its production before the court

 

 

 

15 The defendant felt it was necessary to explain the basis of his defence in some detail. The Defendant believes it to be most relevant to his case.

 

16 The Defendant was setting out in detail the basis of the defence.

 

17 The loan agreement fails to comply with the strict requirements of these documents as referred to in the Defence Statement. The defendant notes that the Claimant does not address point 18 of the Defence document in their Witness Statement.

 

18. Furthermore I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 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 (with the benefit of legal advice if necessary) 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. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

It’s the Defendants contention that the terms have been mis-stated as such, see attached Credit Agreement WS4;

 

2© Insurance Loan – Two figures are stated in the same box 4,778 and 19,500. It is not clear which term applies.

 

3 The Credit {2(a)+2(b)+2© – this is stated as 19,500 but when you add the terms on the Credit Agreement together they equal either 24,278 or 39,000. Depending on which figure you select in section 2©

 

6 Total Charge for Credit (4+5) - stated as 30,413.04, when according to the terms it should read 6,135.04

 

7 The Total Amount Payable (3+6) - reads 30,413.04, when the sum of points 3 (19,500) and 6 (30,413.04) as per the Credit Agreement equals 49,913.04.

 

Furthermore it is not clear if insurance has been added to the amount as per section 2© and if so what portion on the loan repayment this constitutes, as this subsection of section 9 has been left completely blank.

 

The Defendant believes that it is clear that the Credit Agreement has been completed incorrectly and the terms mis-stated and as such the Loan Agreement is made unenforceable.

 

18 The Defendant makes no reference to stating that the document is not signed, merely highlighting one of a number of points to highlight the need for attention to detail, whilst completing the loan agreement and protecting the loanees rights.

 

19 The defendant believes he has a sound defence in law and that the discretion of the courts is this matter is therefore a critical point to raise.

 

 

 

The Need for a Default notice

 

20 Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement. This document has been requested on a number of occasions but has not been forthcoming as admitted in the Claimants witness statement. Indeed the Claimant’s not even able to produce a copy of the Default Notice.

 

21 Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

(2) The court may strike out a statement of case if it appears to the court

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

22 The defendant believes that the arguments presented are valid and that the defence not be struck out but that the claim should be struck out.

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

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Hi A&S

 

Sorry but I've had a bit of trouble logging on to the site possibly due to the age of my PC.

 

Anyway, I think you WS is very good. As you are aware, the key to convince the judge that an incorrect statement of teh amount of credit makes the agreement irredeemibly unenforceable.

 

I've got a few suggestions to tweek the WS which I've set out below for your thought.

 

Regards

 

Doc

In the XXXXXXX County Court

Claim number XXXXXXXX

Between

National Westminster Bank plc- Claimant

and

Mr XXXXXXXX- Defendant

 

Witness Statement

I XXXXXXXX of XXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim and make this witness statement in response to the Claimant’s application to lift the stay and strike out the defence.

The Claim

  1. The defendant’s understanding was that the Claim was merely for the Loan account referred to in 3(a). The defendant believed that the issue raised regarding the Current Account, referred to in 3(b) of the witness statement, was being dealt with directly with the Claimant. I produce a letter marked WS1 from National Westminster Bank, dated 16/12/08, acknowledging receipt of the claim for unlawful bank charges. The letter states that the complaint has been registered and is ‘suspended’ until the outcome of the test case [The OFT v The Banks] and that if it has not been dealt with before then they will deal with it as quickly as possible at that time.
  2. The Defendant has heard nothing from the Claimant about this issue since the letter was received. The Defendant denies he owed an original overdraft sum of £200 but a further £400 in charges has been added to the claim.

The Defence

  1. The Defendant stands by the Defence filed with the court. The Defendant considers that the points raised are still relevant relevant. Further no prejudice has been suffered by the Claimant.

The Particulars of Claim

  1. The Defendant maintains that the Claimant’s Particulars of Claim are too brief, even allowing for the constraints of the using the County Court Bulk Centre
  2. As a result of the brief Particulars of Claim, the Defendant filed a Defence that covered most of the points that were considered relevant in the claim.

Pre – Action Conduct

  1. In the build up to this action, on the 11/11/2008 the Defendant wrote to the Claimant requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the 18/12/2008. (A copy of the correspondence is attached marked WS2).
  2. The Defendant was advised on the 18/12/2008 that no further action would be taken until 30/1/2009. Therefore the Defendant awaited further correspondence.
  3. The letter dated as 12/12/2008, was not clearly stated as a letter before action.
  4. On 23/12/2008 the Claimant supplied a copy of the Credit Agreement, marked exhibit WS3, which was of extremely poor quality.

The Request for Disclosure

  1. Further to the case, on 18/02/2009 the Defendant requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. Due to the paucity of the Particulars of Claim, the information requested was for a legible copy of any Credit Agreement, any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments and payments made by the original creditor together with any other documents the Claimant sought to rely on.
  2. The claimant did respond on the 10/3/2009 but as far as the Defendant is aware, the Claimant does not have the authority to grant the Defendant an extension of time to file a defence, such being the prerogative of the Court.
  3. In the absence of the documents the Defendant considered it was prudent to file a defence in accordance with Civil Procedure Rules as the Defendant understood that failure to do so may have been construed as acceptance of the Claim.
  4. It was not for nearly four months later, on the 26/3/2009 that the Claimant sent the Defendant an identical poor copy of the Credit Agreement sent on the 23/12/09. Statements of account were included in the response but no Default Notices or Termination Notices were included.

Execution of the Loan Agreement

  1. The defendant considered it was necessary to explain the basis of his defence in some detail given the poor Particulars of Claim and lack of documentation from the Claimant. The Defendant believes the Defence is very relevant to his case.
  2. The loan agreement fails to comply with the strict requirements of the Consumer Credit Act and its subsidiary Regulations as referred to in the Defence Statement. The defendant notes that the Claimant does not address point 18 of the Defence document in their Witness Statement, repeating below
     
    18. Furthermore I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299
     
    "[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:
     
    "33 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 (with the benefit of legal advice if necessary) 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."
  3. It is the Defendants submission that the terms have been mis-stated as such, see attached Credit Agreement WS4;
     
    2© Insurance Loan – Two figures are stated in the same box 4,778 and 19,500. It is not clear which term applies.
     
    3 The Credit {2(a)+2(b)+2© – this is stated as 19,500 but when you add the terms on the Credit Agreement together they equal either 24,278 or 39,000. Depending on which figure you select in section 2©
     
    6 Total Charge for Credit (4+5) - stated as 30,413.04, when according to the terms it should read 6,135.04
     
    7 The Total Amount Payable (3+6) - reads 30,413.04, when the sum of points 3 (19,500) and 6 (30,413.04) as per the Credit Agreement equals 49,913.04.
  4. Furthermore it is not clear if insurance has been added to the amount as per section 2© and if so what portion on the loan repayment this constitutes, as this subsection of section 9 has been left completely blank.
  5. The Defendant believes that it is clear that the Credit Agreement has been completed incorrectly and the terms mis-stated and as such the Loan Agreement is irredeemably unenforceable.
  6. The Defendant makes no reference to stating that the document is not signed, merely highlighting one of a number of points to highlight the need for attention to detail, whilst completing the loan agreement and protecting the borrower’s rights.
  7. The defendant believes he has a proper defence in law.

The Need for a Default notice

  1. Notwithstanding the matters pleaded above, the Claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement. This document has been requested on a number of occasions but has not been forthcoming as admitted in the Claimants witness statement. The Claimant’s is still not able to produce a copy of the Default Notice.
  2. The defendant submits that the arguments presented are valid and that the defence should not be struck out.

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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