1st Credit Claimform - Halifax credit card ***Settlement agreed /Claim Struck Out ***

[Stressed150]

Ok I see it with the witness testimony

[AndyOrch]

Make a start Stressed and post it here...unless there are any sensitive points then you can PM me and Ill check it over.......I will post you some examples tomorrow...

 

getting a late now.

[Stressed150]

Hi Andy

 

When you have a moment, would you kindly post some examples or direct me to a thread where I could possibly see one?

 

Many thanks

[AndyOrch]

Sure give me a few mins Stressed.

[AndyOrch]

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 me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract.

 

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 .

 

Date: xx Xxxxx 2014

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

 

No1 and 17 are your start and conclusion...the rest will be subject to how you respond in order to the claimants WS points.

[Stressed150]

Thank you!!

[Stressed150]

Do I need only submit my WS to the court and claimant or do I also need to sumbit other paperwork I intedn to rely on?

 

Can anyone please help - really need to get this off today

 

Many thanks

[superstarjan]

You need to submit everything that you are going to rely on.

 

Add it into your ws as exhibit 1, exhibit 2 and so on..... and label each one accordingly.

 

Make sure you send copies to the other side, because if they don't have a copy, then the judge could refuse to take it into account altogether

[Stressed150]

Thank you - all done now just got to wait for the big day

[Stressed150]

Ok - so update on this already

 

Had a letter from 1st Credit today advising me that issues raised in my WS are new and need to be addressed by the OC. Therefore 1st Credit are withdrawing application for summary judgement with no order for costs and to allow matters to proceed to trial.

 

Small victory thus far??

 

Do I need to do anything at this stage? I was thinking of photocopying the letter and posting to court?

 

Thanking you all in advance (esp Andy)

[AndyOrch]

Can you post your final draft WS /their response Stressed?

 

Regards

 

Andy

[Stressed150]

1. 1. This statement is made in opposition to the claimants application for summary judgement and by which the claimant contends I have no real prospect of successfully defending the claim against me.

2. The claimants claim is for £xxx for monies due and owing together with costs and interest.

3. 2. It is admitted that I have in the passed held accounts with the Halifax. It is denied that I ever entered/signed into an agreement on xx/xx/xx.

4. 3.The claimant claims that an agreement exists between the Halifax and me the defendant, at trial I shall contend that the documents the claimant infers to are merely terms and conditions, and do not constitute an enforceable agreement pursuant to section 78 of the Consumer Credit Act 1974.

5. 4. I intend to defend my case by further requesting the claimant to evidence, how the terms and conditions attached to the application form relate to the account in question.

6. 5. It is denied that an effective default notice was ever issued Page 1 shows the default notice issued by the Halifax on xx/xx/xx requesting payment be made by xx/xx/xx. It is apparent that the default notice does not comply with section 88 of the consumer credit act, as it does not provide me with 14 days to remedy the alleged breach, before termination of the contract by Halifax.

7. 5.Further to this, I intend to request the claimant be put to strict proof, as to how the balance claimed by the claimant was reached, as the statements sent to me as part of the CPR part 31 request demonstrate that charges and interest continued to be added to the account after a defective default was issued, and the account was terminated.

8. 6. The claimant claims that notices of assignment and introductory letters were sent to me on xx/xx/xx to a property addressed xxxxxxxxxxxx and that this remains my current address. It is denied that this has ever been my address, and said notices of assignment were ever received by me.

9. 7. Following receipt of the claim form, a CPR part 31 request was made to the claimants then solicitor Walker Morris, on xx/xx/xxxx a barely legible application form, with 2 separate documents titled “Halifax Credit Card Conditions of use” and “Credit Card Agreement regulated by the Consumer Credit Act 1974” sent in response to this request. It is my belief that the claimant intends to rely on these documents in order to enforce the alleged debt.

10. 8. The claimant claims, that I am now in possession of all the relevant documentation, including a copy of the signed credit agreement and as such the debt is now enforceable pursuant to section 78 of the Consumer Credit Act 1974. At trial I intend to defend my case, by showing that the claimant has failed to produce a properly executed agreement as defined in section 61 (1) of the Consumer Credit Act 1974.

11. 9. 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 claimants claim at trial and that the claimants application for summary judgement be dismissed.

 

Date xx/xx/xxxx

 

 

Statement of truth

I believe the facts in this witness statement are true

 

 

Signed

xxxx

 

Response letter from claimant

 

We refer to your witness statement and evidence dated xx/xx/xx recieved today.

 

Many of the issues rasied in the statement are new and require addressing with the original creditor. As such we consider it appropriate to withdraw our summary judgement application with no order as to costs and to allow the matter to proceed to trial.

 

In the circumstances we have written to the court today requesting that the hearing be vacated.

 

yours faithfully

 

xxx

 

Does this now mean I await a new trial date from the court/1st Credit? Do I also send copy of resposne from claimant to the court?

Am I able to apply to the court to have the case struck out on points raised in my WS?

 

Thank you

[AndyOrch]

No ...as I have already stated ...application for Summary Judgment runs independently to the trial process...they tried to short cut the process...you responded with your Witness Statement...they have backed down.

 

The only thing you need to do now is check that they have vacated the hearing for said application with the court and continue with your timetable as per the Notice of Allocation directions set by the court.

 

Next on your list will be exchange Witness Statements and Standard Disclosure by xxxxxxxx as per Notice of Allocation dates.

 

Regards

 

Andy

[Stressed150]

Thank you Andy

[Stressed150]

Do I get a new notice of allocation for trial?

I get this may come off as a silly question but I've looked through all my paperwork relating to this case and I don't have a trial date or a date telling notice of allocation dates/exchange of witness testimony.

 

Have today emailed the court requesting this information

[AndyOrch]

Hi Andy. I have to submit WS and standard disclosure 7 days before the hearing date which is 3rd Nov

 

Posted 16th October

[Stressed150]

Hi Andy

 

Thanks for response - this date was for summary judgement to which I responded (debt WS to claimant and court) and claimant then sent me a letter saying they have applied to have summary judgement hearing vacated and will low case to proceed to trial.

 

Do I now submit a new WS? (As indicated in post 62?) Surely I get a new date for trial if hearing on 3rd nov has been vacated?

[AndyOrch]

You must refer back to your Notice of Allocation...that contains the directions and dates of what must be done.The application for SJ and relevant hearing was completely separate to the trial Directions.

 

Once you submit your DQ you then receive a Notice of Allocation...it contains the directions and dates....most refer to mediation first and then in the event that it fails the directions are listed below.

 

Some Notice of Allocations only refer to mediation and in the event it fails it requests claimants/defendants to submit a further DQ...but I have not seen one like that for a very long time....so check your NoA again....both pages.

 

Andy

[Stressed150]

I definitely don't have any other DOQ - I remeber receiving one for mediation but distinctly remeber there were no dates for trial etc - it only discussed mediation

 

I have searched everywhere at home and have all documents relating to this case - I can't find anything at all, and am concerned now as I have contacted the court and have not had a reply as of yet

 

Any advice please?

 

Thanks in advance

[AndyOrch]

Take another look at the one you have then Stressed...what does it state if mediation fails ? Parties to submit a further DQ?

[Stressed150]

I have now recieved a response from the court advising me case has now been allocated to small claims track, however they feel case is suitable for mediation and I should contact mediation service - strangely it appears that a hearing did take place on the 3rd Nov despite the claimant advising me they had written to the court to have this vacated! Obviously I didn't attend the hearing on the 3rd and the letter from court makes mention of this - however how am I supposed to attend a hearing that's supposedly been vacated?!

 

Is this normal procedure? Or are the claimant trying to play clever??

 

Many thanks

[Stressed150]

Just an update on this - now on the process of going to mediation, appointment has been arranged for next week, do I need to prepare anything for this?

[AndyOrch]

http://www.consumeractiongroup.co.uk/forum/showthread.php?433406-Alternative-Dispute-Resolution-(Mediation)

[Stressed150]

During the mediation process if I offered a small payment as full and final settlement without admission to debt and they reject my offer could that go against me if the case does proceed to trial?

 

My main concern in all this is that the alleged agreement is improperly executed and therefore unenforceable if I make any offers of payment would that be considered an admission/acknowledgement of debt?

 

This alleged account is made up mostly of charges and interest when I look over the documents/statements I have been sent.

[AndyOrch]

You could offer the idea and see if a settlement would be of interest...dont make any offers or suggest figures.