car repossession unexpected response at court **Claim Dismissed & Costs**

[joebar]

ok andy i will delete it and post it back , what should the NOA have then

[citizenB]

Hi Joe,

 

Well I think the DN is invalid -

 

Dated 22-12-2011 and sent 2nd class post. Remedy date 10th January

 

This was a Thursday.

 

For 2nd class mail 4 business days have to be allowed for it to arrive

 

22.12 - Thursday

23.12 - Friday.................... 1st business mailing day

24.12- Saturday

25.12 -Sunday .................... Christmas Day

26.12 - Monday.................... Boxing Day

27.12 - Tuesday................... Public holiday in respect of Christmas day falling on a Sunday

28.12 - Wednesday ............. 2nd business mailing day

29.12 - Thursday .............. 3rd business mailing day

30.12 - Friday ........................ 4th business mailing day.

31.12 -

01.01.2012

02.01

03.01

04.01

05.01

06.01

07.01

08.01

09.01

10.01

 

Now assuming that it had reached you on the 4th day then you would only have 11 days to remedy. It has been confirmed by both a High court - Harrison v Link and an Appeal court Brandon v Amex that this would be an invalid notice and anything that happened afterwards could/should not happen because of that.

 

I say .. assuming because this was posted directly before a long public holiday and the mail over Christmas is notoriously unreliable and takes a few days to catch up with itself. So the chances of your having received a 2nd class letter within the time would be debatable.

 

The fact that you never received the notice anyway.. makes no difference .. it is BAD....

[joebar]

hi andy

 

so i am right that there are more holes in thier case than titanic and i should list every point and read it out in court with my original defence.?

[AndyOrch]

Just stick to my post #20 and they should fail, do your research,create a skeleton,have you been requested by the Court to submit an amended defence considering they submitted an amended P.o.C?

 

Andy

[joebar]

hi andy

no i havent been asked to submit an amended defence by the court, what do you mean by create a skeleton ?

 

joe

[citizenB]

The following is from Cabot and Bachillier regarding the agreement at para 14

 

14. For the purpose of the record, section 78(1) of the Consumer Credit Act 1974 states the following: "The creditor under a regulated agreement for running account credit within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1 shall give the debtor a copy of the executed agreement, if any, and any other documents referred to in it." One then moves to section 78©: "If the creditor under an agreement fails to comply with subsection (1) -(a) he is not entitled while the default continues to enforce the agreement,"

 

There are other points that could be useful in this judgment as well in that they concern other documents mentioned in the agreement having to be provided as well.

 

We can see from your postings that the terms and conditions provided are NOT those that should have been with the agreement on signing - they are dated 2 years afterwards.

 

 

Cabot v Bachellier - For the consumer.pdf

 

Then there is .. Brandon v Amex on Appeal

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

 

Made it quite clear that 14 clear days MUST be given

 

[citizenB]

The claimant has been allowed to amend their PoC - have you been given the opportunity to respond to the amendments and if so, by when ?

 

You need to go through every point rebutting any thing you disagree with.

[joebar]

hi andy,

thanks for your patience and help

 

you wrote "There are other points that could be useful in this judgment as well in that they concern other documents mentioned in the agreement having to be provided as well. "

 

which docs are these and do i write a new defence or amend my previous one

 

sorry to be a pain its been a long fight

 

i have not been asked to submit an amended defence so shall i draw up a new witness statement and dispute every point they have made

[AndyOrch]

hi andy,

thanks for your patience and help

 

you wrote "There are other points that could be useful in this judgment as well in that they concern other documents mentioned in the agreement having to be provided as well. " CB actually

 

which docs are these and do i write a new defence or amend my previous one (not without the Courts and Claimants permission)

 

sorry to be a pain its been a long fight

 

i have not been asked to submit an amended defence so shall i draw up a new witness statement and dispute every point they have made

If you have not been ordered to then no you can create a Skeleton Argument for the day (3 copies)

 

Stick to the points myself and CB have raised

 

S127(3-5) pre 2007

Section 79 request unfulfilled

T&Cs at the time of agreement unfulfilled

DN probably invalid

2 thirds of the payments exceeded

Possible miss sale of GAP insurance.

 

Regards

 

Andy

[joebar]

thanks guys,

 

i feel much better and ready to give it my best shot

[citizenB]

If you want to pop up your draft when done then we can help you fine tune it.

[joebar]

thanks cb

 

working on it now will post it tomorrow, how will i let you know when i have uploaded it do i click on your name.?

 

thanks

[AndyOrch]

Here is an example Joe:-

 

 

Skeleton Argument

IN THE xxxxxxxx County Court

BETWEEN:

XXxXXxXXXXXX

Claimant

and

xxxxxxxx

Defendant

 

DEFENDANT’S SKELETON ARGUMENT IN DEFENCE .

 

Introduction

1. The Claimant has applied for a Summary Judgment against the Defendant. The Defendant opposes the application.

 

2. The Claimant’s Application Notice is dated 6th February 2012. It seeks that Summary Judgment be entered for the Claimant pursuant to CPR Part 24 and/or that the Defendant’s defence be struck out.

 

CPR 24.2 Grounds for summary judgment

 

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

 

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

(Rule 3.4 makes provision for the court to strike out a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)

 

3. The Application Notice refers only to CPR 24. The Defendant would also wish to make submissions under the obviously relevant CPR 3.4(2)(a) (i.e. strike out on the basis that there are no reasonable grounds for bringing the claim). If need be, an application to amend the Application Notice will be made at the hearing.

 

CPR 3.4 Power to Strike Out a Statement of Case

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(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 the claim;

(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.

 

4. The Court, in any event, has the power to take any such failures into account pursuant to the overriding objective and/or the general powers of case management set out at CPR 3.1(2) (m).

CPR 3.1 The Court’s General Powers of Management

 

(2) Except where these Rules provide otherwise, the court may –

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

 

(b) adjourn or bring forward a hearing;

© require a party or a party’s legal representative to attend the court;

(d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f) stay the whole or part of any proceedings or judgment either generally or until a specified date or event;

(g) consolidate proceedings;

(h) try two or more claims on the same occasion;

(i) direct a separate trial of any issue;

(j) decide the order in which issues are to be tried;

(k) exclude an issue from consideration;

(l) dismiss or give judgment on a claim after a decision on a preliminary issue;

(ll) order any party to file and serve an estimate of costs;

(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

 

5. The Defendant’s position is that:

 

a) the Claimant has failed in its statutory duties and, as a consequence

b) the credit agreement is unenforceable by the court

c) the default notice upon which the claimant relies was not served (nor can ever be served)

d) the interest [contractual or otherwise] claimed is not due, as no valid agreement exists

e) there has been no valid equitable or legal assignment

 

6. Due to the age of this case, it is the Defendant’s belief that the 2006 amendments to the Consumer Credit Act 1974 are not relevant.

 

And so on and so forth...............

 

Regards

 

Andy

[joebar]

thanks andy

i am trying to write it all up now so this helps i will post it tomorrow night so you can see if i have missed anything

 

thanks again

 

joe

[joebar]

Hi Guys,

 

what does this look like am i on the right track ?

 

regards

 

joe

Skeleton Argument draft.pdf

[citizenB]

Just a couple of points from me..

You need to make sure your formatting at points 25 and 26 are sorted out correctly

and..

In respect of the DN argument.. You say..

"this was posted directly before a long public holiday and the mail over Christmas is notoriously unreliable and takes a few days to catch up with itself. "

I would amend to..

"The claimant claims to have posted the notice on 22nd December 2011, directly before an extended public holiday.... etc.. etc..".

I would wait for andy to have a look for you.. Well done so far

[joebar]

thanks cb

[AndyOrch]

Hi Joe

 

Responding to your PM

 

Ok 1-4 are not applicable as the Claimant has not made application for Summary Judgment CPR24.Edit that out then I will take another look.

 

Regards

 

Andy

[joebar]

hi andy thanks

 

here i=s where i am up to ready to finalise and print for morning, any assistance would be great

 

thanks

 

joe

skeleton final draft.pdf

[AndyOrch]

Joe if you take their WS of June and respond in the same manner that should suffice as a response.Whatever she states refute it and why and what you will rely on.

You need to then post that 7 days prior to the hearing date.

 

Regards

 

Andy

[joebar]

hi andy

 

sorry for not getting back sooner

 

i didnt recieve the WS and bundle till the 18th , dated 11th posted 13th..........so i get it to anyone within seven days as the hearing is at 10.30 tomorrow

its good you think i have the angles covered

 

thanks

 

will mail you tomorrow with outcome

joe

[AndyOrch]

" i didnt recieve the WS and bundle till the 18th , dated 11th posted 13th."

 

Bring that to the DJs attention also.

 

Andy

[joebar]

hi guys

 

ok arrived at court to be met with a representative of black horse. the judge decided that there was not enough time for me to take them through all my arguments, and while black horse deem it all to be straight forward i clearly dont so he is relisting asap with 90 mins plus 15 min reading time, 14 days to submit any further docs then anything after that timw will not be allowed.

 

he was surprised that BH had not entered a reply to my defence, the brief said they were only using witness statement judge said reply begins with a capital R not a W.

He also said that it was clear i had some help and i should research costs for litigant in person

 

also i noticed when reading through this morning that the witness statement said the notice of assignment was in june 2010 but in the notice of assognment they sent to me it is dated january 24 2012, is this of any significance guys ?

 

joe

[citizenB]

Hi Joe, that looks good you have more time to prepare. Sounds like the Judge is on the ball - did you book him for next time ?

 

costs for LiP are £18.00 an hour

 

you can claim time for research, all your consumables such as paper, ink, postsage.

 

You can claim for time off work (if you arent paid) @ £90.00 a day I think it is now

You can claim for travel to and from court , parking and fuel if you go by car.

 

I am sure andy will be able to advise further.

 

Assignment Notice - the date has to be correct. So if they have said one date and now claim another then whilst I dont think it is a killer blow - it goes to their credibility in making their paperwork fit the facts.. Again, andy will be able to advise further.

[AndyOrch]

" he was surprised that BH had not entered a reply to my defence, the brief said they were only using witness statement judge said reply begins with a capital R not a W.

He also said that it was clear i had some help and i should research costs for litigant in person

 

also i noticed when reading through this morning that the witness statement said the notice of assignment was in june 2010 but in the notice of assognment they sent to me it is dated january 24 2012, is this of any significance guys ? I wasn't aware it had been assigned I thought BH was the Claimant.

 

Andy