HSBC/DG Claimform - old Credit Card Debt

[Mike_hawk]

Try something like the below....... it's not exactly procedural but it will bring the issue to the attention of the d/j

 

Phil

 

-----------------------------------

 

 

 

 

Statement: Relief from Sanctions

Defendant: xxxxx

Exhibits: xxxxx

Date: xxxxx

Claim Number: xxxxx

 

IN THE xxxxxxxxx COUNTY COURT

 

BETWEEN:

 

xxxxxxxxxxx (CLAIMANT)

v

xxxxxxxxxxx (DEFENDANT)

 

 

WITNESS STATEMENT IN SUPPORT OF DEFENDANT RELIEF FROM SANCTIONS CPR 3.9

 

I, xxxxx, of xxxx WILL SAY AS FOLLOWS:

 

1. I am a litigant in person of the above address.

 

2. I represent myself as the Defendant against xxxxxxxx.

 

3. I make this statement on the first available business day following the Claimants serving of hearing notice.

 

4. The Claimants case rests upon summary judgment application, notice of which was deemed served at 15th June 2012. The notice, served at one business day prior to hearing, failed to provide the Defendant the opportunity to file/serve supporting defence. This is prejudicial to the Defendants case and fails to allow the Defendant the opportunity to fully plead its position in the interests of the administration of justice.

 

5. In claiming relief; the Defendant respectfully requests that should the court not strike out the Claimants application for summary judgment following bad service, the Defendant should not be sanctioned should the court order an adjournment or other remedy available to it.

 

6. In making this statement, I attach exhibits marked xx & xx as evidence of bad service.

 

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

 

Signed: xxxxxxxxx

Edited June 17, 2012 by Mike_hawk

[Mike_hawk]

Should have pointed out.... Andys post above [re; verbal objection] is the correct procedure. By couching your objection within sanction relief you are in effect circumventing the rule. The court may or may not take the w/s into account, it's very much up to the d/j on the day.

 

Having been denied the opportunity to fully defend the application due to bad service, you will be seeking relief from [possible costs] should the hearing be adjourned. You've also been denied the opportunity to respond in time with a full application for relief so a w/s is pretty much all that's left available to you in support for the hearing.

 

Phil

[timewarp3]

Thank you for the Draft WS and layout - It looks great

it is all self explanatory and factual

I will get busy typing, printing and collating files etc for tomorrow - I want to look and be prepared.

 

Yes I understand that the primary objection needs to be verbal and I understand the referencing to CPR 24 and theirs to 23.7

I was worried about their app for costs and their experience winning over on the day

i think Id feel better with handing over a WS relief from sanctions enclosure to usher and hopefully the DJ will not see it in as circumvention.

then its all down to what happens on the day.

[robcag]

I'm not sure if the Overriding Objective is relevant here, but if the enemy solicitor has been sitting on this for 2 weeks (per post #41) and then dumped it on you at the last minute as they clearly have done, then this is clearly not in the spirit of the OO which requires fairness and that the parties be on an equal footing etc.

 

Rob

[Mike_hawk]

I'm not sure if the Overriding Objective is relevant here, but if the enemy solicitor has been sitting on this for 2 weeks (per post #41) and then dumped it on you at the last minute as they clearly have done, then this is clearly not in the spirit of the OO which requires fairness and that the parties be on an equal footing etc.

 

Rob

 

They'd probably claim it's a clerical error...... allows them [if uncontested] the opportunity to railroad their way into the defendants allocated slot to keep the case live and serve supporting evidence at the 11th hour.

 

Weighing it all up it appears a tactical decision based on exposure to costs, if they lose the point on bad service they can still counter timewarps app with exactly the same argument..... and seek costs.

 

Either way they expect to get something out of showing up tomorrow

 

Phil

[timewarp3]

Hi Phil

 

Does your last post mean that they will still get awarded costs ?

or are we going down the correct route to hold them off / send them packing ?

[Mike_hawk]

Nothings certain, just a reminder that the hearing was allocated to your application to strike out their case [they've attempted to piggy back it with their own app]......... if you fail they will apply for costs.

 

I can't imagine for one moment that the d/j won't allow their w/s to stand as evidence in chief..... it's the subject of bad service in respect of tomorrow's hearing but it doesn't stop it existing or the d/j's awareness of the facts stated and its impact on your own app in overcoming part 24.

 

Tbh, I think if the court takes everything into account tomorrow you'll probably come away with a track allocation and pretrial order + a costs order [hopefully limited value] against you.

 

I could be wrong but I have my doubts this will be disposed of very quickly, unless of course if they fail to show

 

Phil

[timewarp3]

Oh dear - So if I understand this correctly :-

the claimant waits 12 months after a stay, then abuses service procedure, and still comes away with a fee ?

That is brilliant

 

Is there anything we can do to strengthen our position ?

remembering of course that this all relates to an agreement that is over 30 years old, no original signed agreement exists and it was only ever an application not an agreement, their default notice was invalid,if they use the reconstituted agreement angle the address will not correspond if we follow Waksman ruling so surely I must be able to argue here.

I was sure that the no signed agreement - means the debt is not enforceable via the courts

or am I barking up the wrong tree.

 

I've now gone from fairly happy and confident to not so happy and concerned

any help or constructive comments before I make a fool of myself tomorrow would be gratefully received.

 

Nothings certain, just a reminder that the hearing was allocated to your application to strike out their case [they've attempted to piggy back it with their own app]......... if you fail they will apply for costs.

 

I can't imagine for one moment that the d/j won't allow their w/s to stand as evidence in chief..... it's the subject of bad service in respect of tomorrow's hearing but it doesn't stop it existing or the d/j's awareness of the facts stated and its impact on your own app in overcoming part 24.

 

Tbh, I think if the court takes everything into account tomorrow you'll probably come away with a track allocation and pretrial order + a costs order [hopefully limited value] against you.

 

I could be wrong but I have my doubts this will be disposed of very quickly, unless of course if they fail to show

 

Phil

[Mike_hawk]

What did you plead in your app, and what supporting evidence did you file/serve?

 

Phil

[timewarp3]

the creditor had originally started proceedings due to non payment

but they never provided evidence to support the POC- i was forced to submit a defence in the 11th hour,

(sound familiar)

defence basically outlined the invalid DN , the reconstituted Agreement not being valid as is does not contain address etc as at time of agreement , earliest terms supplied being dated 13 years after alleged agreement inception, (how can they be valid ?)

and quoted

:- PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).also pleaded unenforceability under sec 78(6) as cca request not fulfilled as per Carey vs HSBC and Phoenix vs Kotecha and ended with, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

They never responded and the courts stayed the case.

 

my recent app for strike simply stated that I submitted my defence to the original case over 12 months ago,

the claimant had failed to provide information under my original request

and that the court had stayed the claim over 12 months ago

 

surely by with holding their evidence and thereby prejudicing my defence ( the reason the case was stayed) the claimant is still

in default as far as this case is concerned -

[Mike_hawk]

Nothing wrong with your app, just that they don't very often succeed in striking out the case. You've pretty much got to find a point thats irrefutable, anything less and the case is more likely than not allowed to proceed to trial [part 24 again]. I guess you weren't aware of a poss cost implication if it fails

 

I assume you've got a bundle of caselaw ready for tomorrow, all indexed and readily accessible.

 

Best bet for tomorrow is to make your case re; bad service, you could try to encourage the court to disallow their supporting evidence and act on their verbal pleading only in defence. Have to say that I doubt it'll add any value to your position as they'd argue from evidence contained within the w/s anyway.

 

Guess you can see now why 11th hour apps are used tactically by the other side, whatever you plead they'll deny relief and refer to unserved statements. The likelihood being a subsequent order for dislosure of docs referred to in their pleading!!

 

Phil

[timewarp3]

Their application and WS references striking out of my original Valid defence

and applying for SJ

their copy terms and recon agreements can not be valid - can I argue this point or will it not come to that ?

and also the non valid default notice - does this not invalidate any further action

 

will i get a chance to counter with any of this ?

[timewarp3]

also

what is my best point of attack here - I assume I now need an attack plan rather than defence

if we are exposed here - is it better to push towards trial and use WS and defence to prove points of case

Im really worried now - Am i a sitting duck or can i bite back and make progress here.

[Mike_hawk]

I would have thought it highly improbable that anything will be decided tomorrow. Doesn't mean it's a 100% certainty but I can't see them overcoming every question Kotecha would raise.

 

Your application will be heard, their argument in defence will be heard [whether oral or by reference to points within their w/s]...... given the questions it will raise it should make it suitable for trial, far too much to consider during a short application hearing.

 

Their app and w/s should not be admissable tomorrow, having been served late as a sep app........ but, [as above] they will be allowed to reference from it in the same manner that any party would be allowed to reference case notes during argument.

 

Once you've got over the hurdle of getting their bad service out of the way, you really just need to focus on your application tomorrow. It's the other side that should be on the defensive. From what I can see they have not filed any evidence in defence of your app.

 

Phil

[NewToTheFight]

Don't forget to box clever about your previous address, if they don't know about it they can never satisfy S77 therefore they cannot enforce

[Mike_hawk]

Nttf has a valid point....... it's unlikely it will have much affect, but no harm in planting the seed at the hearing, drive home the point that if your app fails you need to fully consider/understand the quantum of claim presented. In order to do so the other side must disclose a true copy of the agreement.

 

You'll probably end up with order for standard disclosure by list but it has to be considered that the dj may order sight of agreement at the crux of their case.

 

Phil

[AndyOrch]

Best of luck for today TW

 

Regards

 

Andy

[Old Cogger]

Yes - good luck all X!d

[spamheed]

good luck

[MARTIN3030]

Hearing was listed for morning-so we should be getting some news soon.

[timewarp3]

Thanks everyone for the good luck wishes and help etc .. unfortunately you cant get rid of me that easily.

 

Today was a bit of an anti climax - i'm rather disappointed as i had become anxious and had assumed we would get somewhere today.

 

Events :-

 

The courts were running late today

 

we went in front of judge - he understood that the service of the claimants application was incorrect but did not dismiss it

instead he said that it seemed logical to hear both applications on same day - but not today due to service issue of Claimant Application

Instead he said he would adjourn and reschedule for a later date allocating 2hrs for the hearing (does everything run on a meter - Hope im not feeding it )

he also said the claimants app for cost is being deferred ?

What does this mean

 

will we get a chance to offer a real defence -

left a little confused - but on a positive note, I think i looked the part with my folders and evidence/case law all neatly filed, indexed and tabbed ...... but I did not get to use it

 

Ah well .. at least it was a trip out in the sun.

 

What now... ?

[MARTIN3030]

This was one of the options that was thought likely.

Deferred costs mean put off till later-sometimes they will say reserved.

At least this gives more time than 2 days to prepare.

[DonkeyB]

Just latched on to this thread. These are all typical DG tricks.

 

Have you seen the similarity between their late delivery of WS in this thread of pipster’s? he fought them off. Well worth a read.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?329583-HSBC-v-Pipster-Court-Tomorrow!!-*****Discontinued*****

[AndyOrch]

Ok if its stamped then its been through the channels.Dated 31st May and you are served 15th June.The hearing is Monday 18th June.Therefore the pre required time allowance for service has not been followed.You cant object/ respond via a Witness Statement so you will have to object verbally and request the Court either set a side said application or adjourn your hearing with view to a fresh date to hear both applications.

 

All the dates are too tight to enable a DJ to allow the process of their application be heard fairly and not disadvantage you.

 

 

Andy

 

Theirs and yours costs deferred " he also said the claimants app for cost is being deferred "

[Benbane_Head]

Hi timewarp3,

 

If you need any case law/statute/legal commentary etc which is not available, just let me know as I can get them in click.