Lloyds Stayed 2008 claimform - Claimant Now Going for SJ ***case discontinued ***

[AndyOrch]

Hi Gaz

 

Have you been given a date for the SJ application hearing?

 

 

Regards

 

Andy

[AndyOrch]

Could you post up your defence Gaz.Have i got this right the claim has been stayed for 3 years and the judge requested disclosure?

[AndyOrch]

Did you file your AoS?

[AndyOrch]

Acknowledge of service.

[AndyOrch]

No Gaz the original Summons in 2008 The defendant must AoS and file a defence if defending.

[AndyOrch]

Ok Gaz so in essence you did submit a defence be it an holding defence. Ok you have a couple of options:-

 

You can file a Witness Statement yourself in opposition to the SJ application (very important you refer to the DJs stay and request for disclosure).

Alternatively or both you can make application to strike out/set a side their application. CPR 24 PD 2. On the grounds that they have failed to disclose failed to follow the DJ order of xx xxx xxxx

 

3) The application notice or the evidence contained or referred to in it or served with it must –

(a) identify concisely any point of law or provision in a document on which the applicant relies, and/or

 

(b) state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates,

 

Regards

 

Andy

[AndyOrch]

The above are the grounds the Claimant must adhere to in their application for SJ.The points I have highlighted are grounds to object to their Application.

Gaz can you PM me their WS I understand your wishes not to post it here in the open forum.

 

Andy

[AndyOrch]

..

 

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[AndyOrch]

Hi Gaz

 

Ok i have had a look at the WS what date have you got for their SJ hearing?

 

Regards

 

Andy

[AndyOrch]

Ok thanks for that.

 

As you state you need to prepare a WS in objection to said SJ and submit not less than 7 working days prior to the hearing.

Rather than that be the main concentration in the WS you need to attack also on the reconstituted element.Reconstituted is for providing information in request a section 77/78 request not to be used as enforcement

 

Andy

[AndyOrch]

Ok give me a prod nearer the time and we will get something suitable drafted.

 

Andy

[AndyOrch]

2 weeks yet Gaz as you can see I'm inundated at the moment with more urgent claims that need action now.Lets have a look at it next week.

 

Andy

[AndyOrch]

Ok Gaz your in my to do list next couple of days.

 

Regards

 

Andy

[AndyOrch]

Just bumping this up Gaz to see if you are around.

 

Andy

[AndyOrch]

Excellent so we need to draft a WS in response to their application for SJ correct?

[AndyOrch]

Gaz you are going to have to put a little more input into this I'm afraid I really don't have the time to sit here and draft a WS for you.

 

Here is an example of one I did for Tonka which was successful

 

Witness Statement

 

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract.

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screen shot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screen shot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

9 The screen shot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a letter before action on the 14th April 2008 demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

13 without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and They therefore request the claim value to be amended to £XX XXX XX. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

15 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

17 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

 

Date: xx July 2009

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Yours will need to concentrate on the need to produce an Original and not a reconstituted version to enforce, that is the main thrust of theirs

and the main point you need to refute.I will post up some further guidance on the arguments against a reconstituted shortly.

 

Regards

 

Andy

[AndyOrch]

Ok here is an attachment I have prepared on reconstituted agreement.Digest and incorporate parts into your WS

Try not to go to legal but ref to the various sections/ regs.

 

 

[ATTACH=CONFIG]29685[/ATTACH]

 

Regards

 

Andy

[AndyOrch]

You must use anything and everything to succeed at stopping their application for SJ. If you do lose then anything not used

would be considered as " if only I had said .........." If you do succeed the claim proceeds and you will have plenty of time to focus on points of detail.

 

Regards

 

Andy

[AndyOrch]

An application for SJ is in the favor of the Claimant to short cut the trial process and attain Judgment without trial basically.

If you succeed that just stops their application thats all your WS is to achieve, not win the claim.You are proving to the DJ that your defence will have merit and should proceed.An application for SJ runs parallel to the case and is a separate entity.

 

Andy

[AndyOrch]

Thank you for your PM Gaz (your inbox is full BTW)

 

 

Regards

 

Andy

[AndyOrch]

Excellent news Gaz as we expected.Have you checked with the court they have have also received the NoD? With regards to Wasted Costs as this is SCT its its not automatically granted as per Part 38 - Discontinuance however you can try application under Part 44 - General Rules about Costs PD12.

 

Best of luck and well done, excellent start to the New Year for you and yours.

 

Regards

 

Andy

Edited January 2, 2012 by Andyorch