Honours/Drydens claimform - old SLC Loans stayed - now n244 sj/strike out

[confusedoldstudent]

ok, i'll start on that now.....and post it for more advice. if thats ok......sorry im just a little nervous

[confusedoldstudent]

Good afternoon, im just looking through the claimant sol statement, there are different headings

 

please could you kindly help me through with this

[Guest]

as mentioned, you need to counter their wit statement.

eg their para 15, 26 etc, they say their terms rely on a notice (their def notice was december, the claim being issued in october just before the 6 yrs after the def notice). you need to argue bar (cause of action) goes from the missed payments prior to october (claim issue), not the def notice. and any other issues.

otherwise, no bar if J takes it from the def notice. and if theres no other points in defence...

[confusedoldstudent]

.......pleaase im sorry if i go on a little..........its because im confused .

 

are you saying i dont have a case if the judge chooses to take it from def notice .

[Guest]

this is re an app'n for summary judgment/strike out (as per Civil procedure Rule part 24 etc), and the current order is as per yr post #162, you have to submit 'amended evidence in opposition to their application' ..

you have to file and serve yr 'amended evidence' by the 15th. ie send last post today or tomorrow (registered next day delivery)

as was mentioned earlier on thread, If the statute bar time period (ie 6 years) is deemed to have started from the (default) notice (it seems that is what honours are arguing), ie in December 09, and the claim was issued in October 15, then it probably wld not be barred. You need to argue that it shld go from the last payment, which was before October 09.

ie arguing that there shld not be summy judgment etc as there is a 'real prospect of defending the claim/issue...' (CPR 24)

as previously asked, are there any other poss issues that cld poss also be mentioned in evidence. eg

proper execution of agreement

proof of issue/service of a (mostly) compliant default notice (they mentioned one being sent)

any unfairness

etc

if the J holds that it is not statute barred, and there are no other reasons/issues, then there may be summary judgment against.

give andy etc an urgent nudge also.

ps

you are looking to convince the J that there is a 'real prospect of defending the claim/issue'.

that it shld not be decided summarily, and shld go to trial/hearing. evidence?

statute - s5 Limitation Act says

'An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued'.

cause - you cld say is (accrued) from the last payment missed due after deferment expiry (non thereafter)

ie the breach, and not the notice that they allude to as such notice is procedural re the breach.

.... (like what i posted before).

they have highlighted terms, are there any terms in yr favour that can be highlighted?

execution - was the agreement properly executed, as required by the consumer credit act.

did you do a cca request, has that been satisfied?

although a default notice shouldn't be re bar period

- they say they sent one,

you said you dont recall receiving one.

put them to proof that one was issued and sent.

their logs shld show whether one was sent or not.

if deemed issued/sent, to show that it was compliant.

anything else?

 

just some poss issues IMO, seeing as you are nearing yr deadline

[confusedoldstudent]

Thanks Ford

 

Thanks ford, i didnt see from andyorch, and im a bit stuck at the moment.

 

should i write what you wrote above in my statement

 

Yes i did CCA request, i didnt receive anything apart from the bundle given to me by the dj

 

Please if there is anyone around to help,

[AndyOrch]

Hmmmmm, good morning all

 

I received a letter from court which read as....

 

Upon it appearing to the court that the defendant (whose evidence was filed late) had not secured a copy of the statement of xxxxxx filled in support of the application.

 

it is ordered thaat

 

1. Defendant have permission to file at court and serve on the claimant's solicitors amended evidence in opposition to the application by 4pm on 15 Feb 2016

 

2.The claimant has permission to file and serve evidence in reply by 29 Feb 2016

 

3.Hearing adjourned to first open date after 35 days. Time estimate 1 hour

 

4.Costs in the application

 

 

Just bumping this as it requires attention and submitting by tomorrow.

 

Andy

[AndyOrch]

In the XXXXXXXXX county courticon Claim no. XXXXXXXX

 

Between :

 

XXXXXXXXX Claimant

And

XXXXXXXXX

Defendant

 

Second Witness Statement of Confusedoldstudent in response to the Claimants application for Summary Judgment CPR 24

 

I Confusedoldstudent of (insert address) WILL STATE AS FOLLOWS:

 

1.I am the defendant in this case and state the following in support of my defence dated xxxxxxx in response to a claim made by the claimant dated xx October 2012 and in objection to the claimants application for Summary Judgment dated xxxxxx. The claim has been stayed since xxxxxxxx.

 

2.The Claimants and the Courts attention is drawn to CPR 23.7.(2)

 

" (2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.

(3) When a copy of an application notice is served it must be accompanied by –

(a) a copy of any written evidence in support; and

(b) a copy of any draft order which the applicant has attached to his application.

 

The Claimant failed to comply with the above and I was only served copies on the day of the hearing

 

3. My defence

 

The Claimant's claim was issued on (xx October 2012).

 

The Claimant defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation acticon 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

 

4.I will contend that this Student loan was entered into in 1997 and therefore old style or ‘mortgage’ student loans which are Consumer Credit Agreements pursuant to the CCA1974.

 

The claimant contends and confirmed in writing that that the default notice was issued 19th December 2006.

The termination notice was not issued until 21st June 2007.Therefore the debt was and is not statute barred.

 

5.It is my contention statute - s5 limitation Act states..

 

'An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued'.

 

The cause -(accrued) from the last payment missed due date after deferment expiry (non thereafter) ie the breach, and not the notice that the Claimant alludes to as such notice is procedural re the breach.A Claimant can not elongate the passage of time by relying on the later termination notice date,cause of action will run from the Default Notice date.

 

The claim was issued October 2012, the loan was taken in 1997 with no payment or acknowledgment ever made in a period of 15 years prior to the claim.

 

6.Originally administered by the Student Loans Company (SLC), these loans are repaid at a fixed monthly amount over a period of between five and seven years. Interest rates are based on the retail prices index (RPI) rate of inflation. Crucially, graduates can defer repayments if they earn less than £28,775 a year. The loans are written off 25 years after graduation or when the borrower turns 50, whichever happens first.

 

7. In any event it is denied that I was ever served a Default Notice served under Section 87 (1) on 16/12/2006

It is further denied that I was ever served Notice of Assignment from Student Loans (SLC) to the Claimant pursuant to sec 136 of the Law of Property Act 1925

 

8. 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 pursuant to CPR 24 PD 5.1 (2 or 3)

 

I believe the facts stated in this Witness Statement are true

 

 

signature xxxxxxxx

 

Dated.xxxxxxx

[AndyOrch]

It is ordered that

 

1. Defendant have permission to file at court and serve on the claimant's solicitors amended evidence in opposition to the application by 4pm on 15 Feb 2016

[Guest]

confused

still with us?

and, if J accepts is barred or otherwise no sum judgment, then likewise can ask for their claim to be dismissed/struck out with costs.

i see in yr statement para 5 you said is from the def notice. bar wld need to be argued prior to that as the claim was issued in october, no payments after deferment expiry august.?

[Guest]

 

out of interest. re post #147 did you (cag) have a look at the case i linked there. do you et al agree with it (its para 38 on etc).

i dont know if there has been any recent domestic higher authority (rather than county), but that reasoning seems to make sense to me. and worth arguing?

ah ok, above post has been moved here.

any update confusedoldstudent?

[AndyOrch]

ah ok, above post has been moved here.

 

any update confusedoldstudent?

 

Yes Ford...trying to unhijack the other thread:-)

[Guest]

Yes Ford...trying to unhijack the other thread:-)

i understand

i was asking you, and cag team, about your and cag teams thoughts on it.

[AndyOrch]

I will try to have a look later....when Im quiet