HSBC v Pipster - Court Tomorrow!! *****Discontinued*****

[Pipster2797]

Update

 

had my post and no sign of the skelly from hsbc

 

rang the court and guess what they faxed it to the court yesterday afternoon. trick after trick with them. they are doing everthing they can disrupt the case. i know ill get it in the post tomorrow with them thinking i wont bother with it due to christmas. well guess what the court are going to give me a copy today and im writing to the court to let them know about their tricks

[Pipster2797]

Have to admit I'm disgusted with HSBC's tricks from day one not to send me any documnets. The latest is hard to stomach.

 

They faxed the skelly to the court yesterday at 13:50, dated 22nd Dec.

 

The order states it is to be filed and served by the 22nd. I class it not to be served yet and therefor as per the judge's orders I don't have 14 days to file and serve my skelly in response to theirs. Something which I will be marking down for the judge.

 

I've had to ask the court for a copy, which I now have. I've sent it over to DonkeyB to have a read via email before I post up on the board because I know they are watching this thread!!

 

Hope everyone has a good christmas and I will update shortly.

[citizenB]

I dont think this type of behaviour is restricted to DG solicitors, Pipster.. However, I do believe that they use this trick more, when it is a LiP who is defending..

[Pipster2797]

Its disgusting though CB. All I can do is make the court aware of it. Important thing is i have their skelly now from the court.

[Pipster2797]

Right finished doing my skelly so going to post HSBC's first and then my skelly. Feel free to comment and any help is a great help

 

 

 

and here is my skelly

 

 

DEFENDANT’S SKELETON AGUEMENT

 

1. This is the Defendants statement in response to the claimant’s skeleton argument that was ordered to be served to be by 22nd December 2011. I didn’t receive the skeleton argument from the claimant until Saturday 31st December 2011. However thanks to the courts clerk staff the defendant was able to pick up a photocopy of the claimants skeleton argument up direct from the court on Friday 23rd December 2011. It is grossly unfair that the Claimant has clearly breached Civil Procedure Rules by submitting its own Skeleton Argument as late as possible in order to disadvantage the Defendant. Each of the claimant’s points is answered to mirror their points.

 

2. The Defendant never wanted this case to go to court, and prior and subsequent to litigation has been in touch with the Claimant. This correspondence has even included offers to settle.

 

3. As explained in the defendants witness statement (point 11) dated 8th December 2011 that has now been ordered to stand as my defence by Judge XXXX on the 15th December 2011, clearly explains that the first time I had seen a copy of the said default notice was when I received the claimants witness statement on the 8th December 2011. Point 11 of my defence dated 8th December 2011 clearly states that the Default Notice is invalid and sets out reasons of why the Default notice is invalid. It also has to be pointed out that the claimant stated in point 3 of their Skeleton argument that the arrears on the account was £225.47 and an outstanding balance of £4,656.43, yet the sum the claimant claims to be owed is £4,444.

 

 

4. The defendant does accept that I had received a letter before action dated 9th September 2009 and in point 3 of my defence dated 8th December 2011 it seriously calls in to question the Claimant’s and the Claimant’s solicitors’ accuracy in its record keeping and therefore its version of events, as the claimant’s solicitors have always maintained that a letter before action was sent 19th August 2009. The Claimant has stated previously that a copy of the Letter before Action would be provided, but this has never been presented. It was only when I received the claimants Witness Statement dated 7th December 2011 had the Defendant realised this was the document referred to by the Claimant (on receipt of its WS), as it had been filed under another date – the Defendant has kept full records of all correspondence received and sent. In any event, at the Claimant’s admission, the Letter before Action was sent at a time when the Defendant was in correspondence with the Claimant regarding the provision of documents under statutory requests. The Claimant is fully aware of this fact, as the audit trail of correspondence can demonstrate.

 

5. My defence dated 26th May 2010 was submitted because the claimant had failed to produce any documents when the defendant wrote to the claimant on the 1st May 2010 and the case was stayed.

 

 

6. The letter the defendant received from the claimant dated 16th December 2010 did not contain all the documents the claimant wished to rely upon. They had not supplied a default notice nor had they supplied a Letter before Action notice they claimed was sent on the 19th August 2009 and the claimant has always maintained the stance that this was sent on the 19th August 2009 however as explained above in point 4 it wasn’t until the claimants Witness Statement dated 7th December 2011 when I realised the letter before action they had sent me dated 9th September 2009 was the letter they were refereeing to.

 

7. The amended defence was lodged by the Defendant in response to the bare bones of the Application for Summary Judgment and having still not receiving all the documents that the claimant has wished to rely upon, despite the claimant claiming they had sent the relevant information under cover of their letter dated 16th December 2010. This however wasn’t the case and they had failed to send the Default Notice, Termination Notice and the statements of the account. However due to the claimants solicitor sending me their witness statement dated 7th December 2011. Judge XXX ordered on the 15th December 2011 that the defendant’s responses to the Witness Statement shall stand as his defence. So my amended defence is the witness statement dated 8th December 2011 and the one I wish to rely upon.

 

 

8. The defendants defence dated 8th December does not state this.

 

9. The defendant did not receive copy statements in the claimant’s letter dated 16th December 2010 despite requesting these on several occasions, namely a Subject Access Request on the 23rd February 2009, CPR request dated 1st May 2010 and the claimant claiming they had been sent on the 16th December 2010.

 

 

10. The claimant clearly states that a credit agreement needs to be signed to be enforceable and point 13 of my defence dated 8th December 2011 clearly states -Secondly, the Defendant is absolutely certain that this account was opened without his signing any agreement at all, and avers this is why the Claimant is unable to supply a copy of a signed agreement.

 

11. Point 13 of the defendants defence dated 8th December 2011 states that in the Carey –v- HSBC HHJ Waksman made it clear that a reconstituted agreement can only be used to satisfy a s 78 request. Enforcement still requires a copy of the signed contract.

 

12. By the claimants own admission I refer you to point 10 of the claimants skeleton argument, where they clearly state that it is a prerequisite of enforceability that a credit agreement be signed. The Defendant categorically NEVER signed an agreement.

 

 

13. The Claimant is under the illusion that Carey v HSBC gives rise to the ability to enforce a reconstituted agreement. It categorically does not. HHJ Waksman made it clear that a reconstituted agreement can only be used to satisfy a s 78 request. Enforcement still requires a copy of the signed contract. Moreover, Carey stated clearly in the terms accepted by all parties that the Terms and Conditions MUST be present at the time of signing.

 

14. This presents two distinct problems for the Claimant. Firstly, the T&Cs supplied show absolutely no relation to the supplied blank application form. While Carey stated that the reconstituted agreement is a matter of substance not form, it also clearly stated that the T&Cs MUST be present at the time of signing. The Defendant categorically denies this was the case.

 

15. Secondly, the Defendant is absolutely certain that this account was opened without his signing any agreement at all, and avers this is why the Claimant is unable to supply a copy of a signed agreement. Whatever failing the bank’s system had, it did fail to complete a signed contract. The Claimant cannot simply rely on a ‘probability’ that the Defendant would have signed something. In the same way that efficient systems should ensure a contract is signed, so should they ensure that a copy of the signed agreement is retained. The Claimant cannot rely on the probability of one element of its operation being successful, then disown another element of its operation to suit its case. (At the time of opening the account the Defendant was overdrawn with his current account and spoke to a lady from theXXXXXXX branch over the phone. She suggested consolidating the unauthorised overdraft into a credit card. The card was subsequently received in the post. In this respect, no T&Cs could possibly have been provided at the time of signing.) In any event, the Defendant categorically DID NOT EVER sign any agreement.

 

 

16. See above Point 13, 14 & 15.

 

17. My defence dated 8th December as mentioned many times was in response of finally receiving all of the documents the claimant was to rely upon with exception of the statements of account, upon receiving these documents I have been able to correctly defend myself and state as above point 13 the Defendant categorically DID NOT EVER sign any agreement. The first time the Defendant had been provided with any supposed copy of a Default Notice, was with the claimants Witness Statement dated 7th December 2011. The Defendant categorically denies ever receiving any such notice, and the Claimant is put to strict proof. In this form, the Defendant is unable in any event to ascertain whether any such notice, if sent, is compliant with s87 of the Consumer Credit Act. The data fields provide no evidence of compliance. However, the Defendant’s research has unearthed a sample HSBC default notice from 2009, attached to my defence dated 8th December 2011 as Exhibit CD 02.The Court will note that the completed fields in this document only provide 14 days for compliance. This allows no time at all for service, and renders any such DN invalid. According to American Express v Brandon [2011], enforcement action cannot be brought on the back of an invalid default notice. This is a ruling of the Court of Appeal and is not a de minimis issue. Again, the Defendant denies ever receiving a default notice, but avers that if one was sent but not received, it would not have been valid.

 

18. For the reasons set out in this skeleton argument, The Defendant avers that s 127(3) does indeed apply, as the Claimant cannot possibly ever comply with a s 78 request due to the fact that an agreement was never signed, and that this is a bar to enforcement.

 

19. The Defendant respectfully requests that the application for summary judgment be denied, and that the case goes to hearing and a draft order for directions for the Claimant to provide proofs and documents is attached for the Court’s consideration, and the Defendant requests that this draft becomes part of any order.

 

 

20. As explained above in point 3 and in the order from Judge XX on the 15th December 2011, my response to the claimants Witness Statement dated 8th December is to stand as my defence.

 

21. This was because some of the documents hadn’t been produced when requested earlier, however the claimant supplied all documents they plan to rely on with their Witness Statement dated 7th December 2011, with the exception of the statements of account. This was the first time I had seen the said evidence the claimant was going to rely on. Therefore for the first time allowing me to produce a proper defence.

 

22. Throughout this episode, the Claimant and its solicitor have repeatedly failed to comply with CCA requests, subject access requests and CPR requests, all of which were valid legal requests and accompanied by the appropriate fee where required and frustrating my efforts of forming a defence. Because the Claimant has frustrated the Defendant’s efforts to settle, the Defendant is given no opportunity but to defend his position by whatever means necessary. The facts of the case have not altered since the Claim was stayed. The Defendant is at a loss to wonder on what new basis the Claim is suddenly suitable for Summary Judgment, other than in an attempt to take advantage of the Defendant’s status as a Litigant in Person.

 

 

 

[citizenB]

AGUEMENT = Argument.. I am just going to have a read back over your thread..

 

What date in 2009 is the DN you have managed to obtain a copy of ?

[Pipster2797]

Sorry did I miss spell it?

 

The DN I have managed to get a copy of is from 6th May 2009.

[Pipster2797]

AGUEMENT = Argument.. ?

 

Wouldn't care but I've spelt it correctly further down

[citizenB]

HSBC are always trotting out Carey as if it were their own personal saviour.

 

1: The Claimant in Carey were the detors themselves.

 

2: CAREY

 

Carey did nothing to deal with enforcement in my opinion, it primarily sought to clarify compliance with s78(1) which it did very very well.

 

If you read carey properly you can see that HHJ Waksman did not address the issue of "proof of proper execution" and he actually went out of his way to tell us that this judgment deals with s78 not the issue of actual enforcement therefore, s78 is for information purposes only as clarified by Carey not for enforcement purposes, so a creditor CANNOT under carey enforce a reconstruction which simply complies with s78(1)

3: HSBC are taking a huge leap of faith by saying that if they can rely on a reconstruction/reconstituted document for an agreement, then the same should be allowed for a Default Notice.. especially with Brandon, Harrison and Kotetcha cases (all dealt with in Higher courts) saying otherwise.

[Pipster2797]

CB I agree. Im not always the best at getting it down on paper though. Do you think the skelly looks ok, or do you think I should change anything?

[citizenB]

I think you have covered everything, the assertion that no agreement was ever signed therefore, they cannot EVER comply on that score.

 

The DNs issued by them at that time didnt comply with statute and 3 high court judgments have since repeated the importance of a properly issued Default notice before further action can be taken.

 

I wonder if DonkeyB or andyorch are around to maybe comment.

 

BTW, have sent a pm

[Pipster2797]

Cheers CB, got the PM and replied.

 

Think DonkeyB is away at the moment as dropped him a few emails. Not sure if he is back yet.

 

I should really get the skelly sent off tomorrow but thinking I could drop it into the court on Thursday and post it to HSBC on Thursday, for them to get it a day late. (whats good for the goose is good for the gander)

[citizenB]

Lets see if we cant hunt down andyorch..

[Pipster2797]

Thanks Again CB.

 

I've got to pop out for a few hours but will be back first thing in the morning.

 

Hopefully if I can get the SJ stopped and get this to trial it may actually get HSBC to listen and try and get this sorted. i.e remove charges etc and get this put to bed.

[AndyOrch]

Give me chance to familiarise Pip not seen this thread.

 

Andy

[citizenB]

Thanks Andy, much appreciated

[Pipster2797]

Yean no prob, like I say I have to pop out for a couple of hours.

 

Think ill drop the skelly off to the court on thursday by hand and send the skelly by post on thursday to hsbc like they did with me.

[AndyOrch]

Without knowing the finer details of the claim and having read the Claimants Skeleton, lets be positive that the order states your Skeleton must be in response

If so then it must start of by objecting to their call of strike out and in the alternative Summary Judgment.That out of the way you then deal/refute the points they have raised in chronological order.

 

 

PREPARING A SKELETON ARGUMENT

 

As a litigant in person you will acting as your own advocate. The skill in preparation which is valued is in preparation of quality and informative skeleton arguments and chronologies. Skeleton arguments, properly prepared andused, are the foremost weapon in the LIPs armory and the vehicle for short and focused hearings. The impact on the judge of a quality skeleton argument cannot be over-estimated. It is the your first "speech" to the judge which you are allowed to deliver without any interruption by the judge(hopefully!).The judge may legitimately assume that it is your best effort, on which the judge is asked to make at least his provisional judgment, and you must realisethat it may be difficult thereafter (if not impossible) to shift that view.

 

The skill in advocacy is no longer the ability to drone on uninterrupted for hours:that is the perquisite of the judiciary alone. It is the ability to assist thejudge, most particularly in answering his questions and resolving his doubts.You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade. This requires having the facts at your fingertips and the legal principles in mindand relevant passages in authorities and textbooks at hand - a far greater knowledge of all these is now required than was the position when the judge remained recumbent throughout the proceedings. The premium today is upon flexibility- to deal with issues raised, not as you may have planned, but as they are raised by the judge. It is important to try gaining the judge's trust and confidence in your preparation and accordingly the solidity of your submissionsand answers to questions asked.

 

You may have an expectation of your "day in court". Such expectation should be lost immediately and realise the critical role of the skeleton argument. It takes the place (at least in part) of the opening address to the judge.Subsequent questioning by the judge is the opportunity to make more - and notless - of what is and can be said.

 

A skeleton argument is a concise document summarising the main issues about the law and evidence in the case. It is often useful, as it helps to concentratethe mind and save time at the hearing. A "skeleton" should, almost by definition, concentrate on the "bare bones" of the case: Key facts,and the contentions based upon them. In drafting a "skeleton", it is useful to remember that judges will appreciate a document that goes to the heart of the case and avoids rhetorical flourishes.

 

Regards

 

Andy

[Pipster2797]

If I changed point 1 too........

 

 

1. This is the Defendants statement in response to the claimant’s skeleton argument that was ordered to be served to me by 22nd December 2011. I didn’t receive the skeleton argument from the claimant until Saturday 31st December 2011. However thanks to the courts clerk staff the defendant was able to pick up a photocopy of the claimants skeleton argument up direct from the court on Friday 23rd December 2011. It is grossly unfair that the Claimant has clearly breached Civil Procedure Rules by submitting its own Skeleton Argument as late as possible in order to disadvantage the Defendant. I respectively request that the claimants application for summary judgement be struck out because of the following reasons herein and that the Claimant has not presented any case suitable for summary judgment. In fact, given the evidence herein, it is averred that the Claimant’s case should be struck out for the fact that a s 78 has admittedly not been complied with, and cannot possibly ever be complied with. Each of the claimant’s points is answered to mirror their points.

 

 

Or should I be changing everything?

 

I feel allot of my skelly is mirroring my WS as is HSBC's skelly mirroring their WS to an extent but with a little extra added in.

[king100]

Interesting read, gl with it all. Just as a pointer why don't you send WS over to HSBC tomorrow pay for guaranteed next day delivery so they have a copy on the 5th and see what bull**** they say in court about when they received it.

[Pipster2797]

Interesting read, gl with it all. Just as a pointer why don't you send WS over to HSBC tomorrow pay for guaranteed next day delivery so they have a copy on the 5th and see what bull**** they say in court about when they received it.

 

You mean with the skeleton argument?

 

This is what happened with my WS. It was sent and they signed for it on a certain date. They claimed they received it several days later. They then sent me their WS and I received it on the day of the hearing for the SJ, which included a part complaining I hadn't sent it in time, of course I had proof saying it was signed for 7 days before the SJ hearing.

 

To be honest the judge didn't care too much was more bothered that he wouldn't get through it in 30 mins and relisted it for a 2 hour hearing.

[king100]

Yeah just read all 8 pages, would go against them surely as liars, but as not a expert on courts, I would think that showing HSBC as a buch of liars might help..

[Pipster2797]

I agree and would think it would help but sometimes I don't think the courts give a hoot about you being LIP

[AndyOrch]

1. I ( name) make this statement in response to the claimant’s skeleton argument, ordered to be served on me by 22nd December 2011. Which was not recieved until Saturday 31st December 2011. It is grossly unfair that the Claimant has clearly breached Civil Procedure Rules by submitting its own Skeleton Argument as late as possible in order to disadvantage the Defendant. I respectively request that the claimants application for strike out/ summary judgement be denied for the above and following reasons herein, it is averred if denied that the Claimant’s case should be struck out for the fact that a s 78 has admittedly not been complied with, and cannot possibly ever be complied with.

 

2. Introduction ........

 

3 Background........

 

4 Conclusion.......( Finish with valid points and reiterate point 1 rubbish Carey etc......

 

Statement of Truth.

 

Regards

 

Andy

[Pipster2797]

Right how does this sound

 

DEFENDANT’S SKELETON ARGUMENT

 

Introduction

 

1. I ( name) make this statement in response to the claimant’s skeleton argument, ordered to be served on me by 22nd December 2011, which was not received until Saturday 31st December 2011. It is grossly unfair that the Claimant has clearly breached Civil Procedure Rules by submitting its own Skeleton Argument as late as possible in order to disadvantage the Defendant. I respectively request that the claimants application for summary judgement be denied for the following reasons herein, it is averred if denied that the Claimant’s case should be struck out for the fact that a s 78 has admittedly not been complied with, and cannot possibly ever be complied with.

 

Background

 

2. The Defendant never wanted this case to go to court, and prior and subsequent to litigation has been in touch with the Claimant. This correspondence has even included offers to settle.

 

3. As explained in the defendants witness statement (point 11) dated 8th December 2011 that has now been ordered to stand as my defence by Judge XXXX on the 15th December 2011, clearly explains that the first time I had seen a copy of the said default notice was when I received the claimants witness statement on the 8th December 2011. Point 11 of my defence dated 8th December 2011 clearly states that the Default Notice is invalid and sets out reasons of why the Default notice is invalid. It also has to be pointed out that the claimant stated in point 3 of their Skeleton argument that the arrears on the account was £225.47 and an outstanding balance of £4,656.43, yet the sum the claimant claims to be owed is £4,444.

 

 

4. The defendant does accept that I had received a letter before action dated 9th September 2009 and in point 3 of my defence dated 8th December 2011 it seriously calls in to question the Claimant’s and the Claimant’s solicitors’ accuracy in its record keeping and therefore its version of events, as the claimant’s solicitors have always maintained that a letter before action was sent 19th August 2009. The Claimant has stated previously that a copy of the Letter before Action would be provided, but this has never been presented. It was only when I received the claimants Witness Statement dated 7th December 2011 had the Defendant realised this was the document referred to by the Claimant (on receipt of its WS), as it had been filed under another date – the Defendant has kept full records of all correspondence received and sent. In any event, at the Claimant’s admission, the Letter before Action was sent at a time when the Defendant was in correspondence with the Claimant regarding the provision of documents under statutory requests. The Claimant is fully aware of this fact, as the audit trail of correspondence can demonstrate.

 

5. My defence dated 26th May 2010 was submitted because the claimant had failed to produce any documents when the defendant wrote to the claimant on the 1st May 2010 and the case was stayed.

 

 

6. The letter the defendant received from the claimant dated 16th December 2010 did not contain all the documents the claimant wished to rely upon. They had not supplied a default notice nor had they supplied a Letter before Action notice they claimed was sent on the 19th August 2009 and the claimant has always maintained the stance that this was sent on the 19th August 2009 however as explained above in point 4 it wasn’t until the claimants Witness Statement dated 7th December 2011 when I realised the letter before action they had sent me dated 9th September 2009 was the letter they were refereeing to.

 

7. The amended defence was lodged by the Defendant in response to the bare bones of the Application for Summary Judgment and having still not receiving all the documents that the claimant has wished to rely upon, despite the claimant claiming they had sent the relevant information under cover of their letter dated 16th December 2010. This however wasn’t the case and they had failed to send the Default Notice, Termination Notice and the statements of the account. However due to the claimants solicitor sending me their witness statement dated 7th December 2011. Judge XXX ordered on the 15th December 2011 that the defendant’s responses to the Witness Statement shall stand as his defence. So my amended defence is the witness statement dated 8th December 2011 and the one I wish to rely upon.

 

 

8. The defendants defence dated 8th December does not state this.

 

9. The defendant did not receive copy statements in the claimant’s letter dated 16th December 2010 despite requesting these on several occasions, namely a Subject Access Request on the 23rd February 2009, CPR request dated 1st May 2010 and the claimant claiming they had been sent on the 16th December 2010.

 

 

10. The claimant clearly states that a credit agreement needs to be signed to be enforceable and point 13 of my defence dated 8th December 2011 clearly states -Secondly, the Defendant is absolutely certain that this account was opened without his signing any agreement at all, and avers this is why the Claimant is unable to supply a copy of a signed agreement.

 

11. Point 13 of the defendants defence dated 8th December 2011 states that in the Carey –v- HSBC HHJ Waksman made it clear that a reconstituted agreement can only be used to satisfy a s 78 request. Enforcement still requires a copy of the signed contract.

 

12. By the claimants own admission I refer you to point 10 of the claimants skeleton argument, where they clearly state that it is a prerequisite of enforceability that a credit agreement be signed. The Defendant categorically NEVER signed an agreement.

 

 

13. The Claimant is under the illusion that Carey v HSBC gives rise to the ability to enforce a reconstituted agreement. It categorically does not. HHJ Waksman made it clear that a reconstituted agreement can only be used to satisfy a s 78 request. Enforcement still requires a copy of the signed contract. Moreover, Carey stated clearly in the terms accepted by all parties that the Terms and Conditions MUST be present at the time of signing.

 

14. This presents two distinct problems for the Claimant. Firstly, the T&Cs supplied show absolutely no relation to the supplied blank application form. While Carey stated that the reconstituted agreement is a matter of substance not form, it also clearly stated that the T&Cs MUST be present at the time of signing. The Defendant categorically denies this was the case.

 

15. Secondly, the Defendant is absolutely certain that this account was opened without his signing any agreement at all, and avers this is why the Claimant is unable to supply a copy of a signed agreement. Whatever failing the bank’s system had, it did fail to complete a signed contract. The Claimant cannot simply rely on a ‘probability’ that the Defendant would have signed something. In the same way that efficient systems should ensure a contract is signed, so should they ensure that a copy of the signed agreement is retained. The Claimant cannot rely on the probability of one element of its operation being successful, then disown another element of its operation to suit its case. (At the time of opening the account the Defendant was overdrawn with his current account and spoke to a lady from the XXXXXX branch over the phone. She suggested consolidating the unauthorised overdraft into a credit card. The card was subsequently received in the post. In this respect, no T&Cs could possibly have been provided at the time of signing.) In any event, the Defendant categorically DID NOT EVER sign any agreement.

 

 

16. See above Point 13, 14 & 15.

 

17. My defence dated 8th December as mentioned many times was in response of finally receiving all of the documents the claimant was to rely upon with exception of the statements of account, upon receiving these documents I have been able to correctly defend myself and state as above point 13 the Defendant categorically DID NOT EVER sign any agreement. The first time the Defendant had been provided with any supposed copy of a Default Notice, was with the claimants Witness Statement dated 7th December 2011. The Defendant categorically denies ever receiving any such notice, and the Claimant is put to strict proof. In this form, the Defendant is unable in any event to ascertain whether any such notice, if sent, is compliant with s87 of the Consumer Credit Act. The data fields provide no evidence of compliance. However, the Defendant’s research has unearthed a sample HSBC default notice from 2009, attached to my defence dated 8th December 2011 as Exhibit CD 02.The Court will note that the completed fields in this document only provide 14 days for compliance. This allows no time at all for service, and renders any such DN invalid. According to American Express v Brandon [2011], enforcement action cannot be brought on the back of an invalid default notice. This is a ruling of the Court of Appeal and is not a de minimis issue. Again, the Defendant denies ever receiving a default notice, but avers that if one was sent but not received, it would not have been valid.

 

18. For the reasons set out in this skeleton argument, The Defendant avers that s 127(3) does indeed apply, as the Claimant cannot possibly ever comply with a s 78 request due to the fact that an agreement was never signed, and that this is a bar to enforcement.

 

Conclusion

 

19. The Defendant respectfully requests that the application for summary judgment be denied, and that the case goes to hearing and a draft order for directions for the Claimant to provide proofs and documents is attached for the Court’s consideration, and the Defendant requests that this draft becomes part of any order.

 

20. As explained above in point 3 and in the order from Judge XX on the 15th December 2011, my response to the claimants Witness Statement dated 8th December is to stand as my defence.

 

21. This was because some of the documents hadn’t been produced when requested earlier, however the claimant supplied all documents they plan to rely on with their Witness Statement dated 7th December 2011, with the exception of the statements of account. This was the first time I had seen the said evidence the claimant was going to rely on. Therefore for the first time allowing me to produce a proper defence.

 

 

22. Throughout this episode, the Claimant and its solicitor have repeatedly failed to comply with CCA requests, subject access requests and CPR requests, all of which were valid legal requests and accompanied by the appropriate fee where required and frustrating my efforts of forming a defence. Because the Claimant has frustrated the Defendant’s efforts to settle, the Defendant is given no opportunity but to defend his position by whatever means necessary. The facts of the case have not altered since the Claim was stayed. The Defendant is at a loss to wonder on what new basis the Claim is suddenly suitable for Summary Judgment, other than in an attempt to take advantage of the Defendant’s status as a Litigant in Person.

 

 

I just need to put in the conclusion again about Carey...........

 

Right bed time as no doubt my little 2 year old will be up at 6am!!! Just wrecked and head spinning now with this.

 

Thanks again for all the help and shall speak in the morning.