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I would wait unit the trial proceeds...forewarned is forearmed...you dont want them finding a better copy in the meantime.

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So is it okay for me to say i the CCA produced is illiegible and thus i am unable to scrutinise it to ascertain if it complies with s.127 until i am provided that the court must take into account its powers under s.65.

 

The lawyer i spoke to said the judge may not like the fact only bringing up the question of legibility at court and not before and if the case in adjourned i may have o pay the costs of adjournment.

 

What do you guys think

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If the Agreement was taken out/made before 06/04/2007 then s127(3) still applies and it is Regulated by the consumer credit Act 1974.

 

Sec 65 Consequences of improper execution.

 

(1)An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

Pointless raising it out of court as its for the court to determine...obviously the claimant will disagree with you and with regards to costs why would there be an adjournment?

 

Regards

 

Andy

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Hi,Well i was told that the judge may take a sim view of me not mentioning the legibility of the CCA before the hearing. Also if AK claim that they can get hold of a better copy then the judge will adjourn till that is produced.Im just trying to have all the arguements ready before i get to court.

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But you will refer to it in your Witness Statement pre hearing/trial:-)

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  • 1 month later...

Convert your uploads to PDF format then we can view them:-)

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[ATTACH=CONFIG]51126[/ATTACH]hi guys ive converted the jpegs to pdfs hopefully you can read them. The judge at the adjournment hearing asked aktiv kapital to provide a readable or reconstituted verson of the CCA. What they sent was a pretty unreadable reconstituted copy and a list of terms and conditions which i dont remember receiving and even if sent were sent after the signing of the agreement. This would breach contract law i think.

 

The judge has asked me to supply responses to his questions. what should i say and do now. i need to serve a witness statement to the court tomorrow by 4 pm.

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Simply refer back to your defence and reiterate that what has been disclosed is still illegible...therefore you stand by your defence that S61 of the CCA stands.

Terms and conditions also disclosed are random and unconnected.

 

With regards to the second point state why you dispute the alleged default/statements.

 

Have a go at drafting the WS and post here before submitting (Allowing plenty of time for amendments)

 

Regards

 

Andy

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keep an eye out for more replies but 196(4) Law pf Property Act is NOT for service of a Default notice which is 87(1) CCA 1974.

 

s.196(4) law of Property Act is the Notice of Assignment of the debt between MBNA and Aktiv Kapital and informs you of that assignment

 

Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

PLEASE WAIT THOUGH FOR CONFIRMATION AS I AM NOT QUALIFIED TO GIVE ADVICE, ONLY OPINION

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Claim number showing on WS therefore I have unapproved it please remove and upload.As per above you need to address point 5 LOP has nothing to do with Default Notices.

 

http://www.legislation.gov.uk/ukpga/1974/39/section/88

 

If you wish to challenge the assignment then refer to 196(4) Law of Property Act.

 

Andy

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Hi Guys Anymore suggestions? I managed to apply for an extension to file the statement. I really need your help. What other points can i use or should i restrict what i say on the statement.? thanks

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Just do the amendments as already advised

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You need to remove 9.....Its small claims not crown court.

 

Here is an example of how a WS should be format...... this is in objection to Summary Judgment. :-

 

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 myself and the claimant.

 

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 screenshot 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 screenshot 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 screenshot 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 .

 

Dateed this day xx XXXXX 2014

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

 

Regards

 

Andy

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This is useful. However with my case in mind what points should i mention in the statement. What should i start with? and how should i elaborate and what act in law should i quote?

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The ones in your original draft above.... Default Notice...illegibility and Law of Property if you are challenging the assignment.

We could do with some help from you.

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