Brothers Welcome/Hagarty Claimform - old Loan - now 3yrs later IND are lifting the stay by N244

[AndyOrch]

See post #53

[Gaz7483]

Sorry Andy, my mistake. I meant on which document was that quote taken from as I'd like to provide it to the court as evidence? I've been through the PDF's but can't find it.

[DonkeyB]

The PoC is in your very first post. I imagine you copied it from the claim form. I assume you still have the claim form somewhere? Just hope your transcript was accurate!

 

Great post Andy – as usual, saved me some work...

[Gaz7483]

Wow, good spot! Now I have a big problem because I don't have that form! Is there any way I can get a copy or still somehow use it in defence? It seems like a major point in the context of the case.

[DonkeyB]

Here you go – CCA Section 60 (1)

Form and content of agreements.

(1)

The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

My contention is that the agreement does not show the amount of charge for credit. It leaves you to work it out.

Does that make it unenforceable?

Do you know where it might be? I doubt you copied it inaccurately. Stick to what it says. Just state it as fact – the court will (should!) have a copy in the file.

[Gaz7483]

My brother thinks that I have all the original paperwork from the first time around but I'M convinced I gave it back to him.

It does make sense though that they would have a copy of the original application wouldn't it?

Is it worth getting my brother to phone and ask them for a copy, or at least make sure they have a copy available to them on Friday as it's so important to the case?

[DonkeyB]

It should be in the case file that the court holds. The PoC is pretty critical – it should not have gone anywhere.

 

But, as it’s IND, call the court and check – in case IND have made any sneaky applications to amend.

[Gaz7483]

OK fantastic, I'll get him on the case in the morning and I hope to have a draft uploaded by tomorrow night. Again, thank you!

[DonkeyB]

No probs.

 

Andy, what needs to be done with regard to file/serve of the defence/WS?

[Gaz7483]

DonkeyB, I note you said that in the new witness statement they are claiming that this account was not terminated. Is this something they have implied by issuing a Notice of Arrears or is it something they have stated explicitly somewhere?

[DonkeyB]

No. In the Original PoC they say the account was terminated because if a failure to abide by the T&Cs. They can't backtrack on that, but are trying to.

 

They are now claiming it was not terminated due to a breach of the T&Cs because that would have required a DN — and they know they did not issue one. In other words, they have changed their story because the original PoC necessitated a DN.

 

They are fibbing to suit their available evidence.

[AndyOrch]

No probs.

 

Andy, what needs to be done with regard to file/serve of the defence/WS?

 

It must be served on the court and claimant not less than 7 days pre hearing.

 

Regards

 

Andy

[DonkeyB]

Hearing is in three days. Better get a move on and play the LiP card. They were also rather late sending their WS to support their app – and the OP did not receive a copy of the app in April – so I think there should be leeway.

[AndyOrch]

Hi Gaz well nothing has changed.... if it was SB at the time they issued the claim and you defended on that premise ....then its still statute barred.

 

Has the court sent you a copy of the n244 application and any witness statement in support of..?

 

Has the court missed the time off the hearing...have you been invited to attend?

 

Are the court even aware f an application?

 

 

 

You are legally allowed to submit your own witness statement in response noting your objections...firstly that the claim is statute barred and further that you regard the application after 3 years as unreasonable and an abuse of process

 

Check out with the court why no time listed and why no invite for you ...if that is the case.

 

Regards

Andy

 

I did imply Donkey...7 days ago:-)

[DonkeyB]

Indeed you did. IND are the devil’s own, so they need ‘special’ treatment.

[AndyOrch]

So we just need a little input from Gaz then.....and sharpish:-)

[Gaz7483]

Oh crap, only just seen your replies.........

Was just about to update you though because my brother has just spoken to the court and there seems to be a major issue.

They wouldn't tell him if there had been an application to amend the particulars of the claim, they just said he would have received notification by mail.

He told them that he has received NO correspondence at all from the courts, he wouldn't have even known about the hearing if it wasn't referred to in IND's paperwork.

he asked them to check the address they have for him and they said it doesn't match his.

They wouldn't tell him which address the paperwork was going to but suffice to say he hasn't been getting it!

He asked what he could do, they said he could request the paperwork by email, but they would post it to his new address. There's no chance of getting it before Thursday at best!

[Gaz7483]

Ok guys, here goes. Tear it apart, let me know if I'm on the right track please

[AndyOrch]

Content seems fine...no exhibits ? just requires to be finished with standard layout and finished with a statement of truth.

 

See here in post#47

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?439434-MKdp-llp-claimform-old-barclaycard-debt/page3

 

Regards

 

Andy

[Gaz7483]

Hi Andy,

 

Thanks for your input. I'm going to add the exhibits at the end, I just wanted to try and get the witness statement done and uploaded for you to have a look at first. I'll try and get it into that format tomorrow and upload it again. I hope I can get it looking as good as the one in the link you posted, mine seems too "wordy" but I like the style of that one.

 

Do we still have time to get this to the court or will it need to be presented verbally at the hearing now?

 

Regards,

 

Gaz

[AndyOrch]

What date is the hearing?

[DonkeyB]

Think it’s Friday, Andy.

 

Need to add in to the WS something about the claimant sending correspondence to different addresses yet suddenly finding you near the court date.

[AndyOrch]

Should have filed today...you could get away with 3 days...email a copy to the court/claimant tomorrow...I would also take a spare copy on Friday and ask the court usher to push it into the file before you go in.

[Gaz7483]

Oops.......OK I'll send a copy as soon as possible. Thanks for letting me know.

[AndyOrch]

If you get a jobsworth just say you have emailed a copy to the court earlier in the week (dont state Thurs) and you just wanted a better copy putting in the file.