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

[Stressed150]

Thank you Andy!

[Stressed150]

Ok so just an update on this one

 

Had mediation appt which lasted less then an hour, mediator explained that both sides need to cut to the chase to see if we can come to an amicable solution and see if we can meet in the middle as motivation is financial and mediator advised anything discussed during the process is without prejudice so cannot be used by either party should the case proceed to trial.

 

Needless to say the claimant started closer the higher end of the balance disputed on the alleged account - bottom line we came to no resolution and case will now proceed to trial.

 

The mediator was very pushy and did put pressure on to resolve etc but was fair and impartial in all honesty.

 

Case is now going to trial next year.

[AndyOrch]

So now you simply revert to your Notice of Allocation Stressed and in particularly the directions which you must comply with by the dates stated...witness statements and disclosure.

 

Regards

 

Andy

[Stressed150]

Hello trial date for this is end of July, and am in the process of preparing my WS for this, just a few points that I need clarification on please?

 

1. Looking through my paperwork, I may not have actually sent a CCA request to first credit, only a cpr request - to which an unforecable application form with terms and conditions was sent to me, do I still need to send a CCA request?

 

2. Do I need to ammend my original WS as submitted on MCOL to the same as that which i will be submitting now? This is not stated in the notice of allocation to the small claims track, however prior to this, the claimant applied for summary judgement, which the claimant advised me that they would be applying to have the hearing vacated (however this still went ahead), i did not atedned the hearing, however I contacted the court, and they advised me hearing had taken place, and judge was not very happy about me submitting a WS as part of bundle which was different to the one submitted on MCOL???

 

3. Can I use claimants WS for summary judgment as part of my defence? (Many, many many errors on par of claimant)

 

 

4. This is a claim for an alleged credit agreement pre 2007 any links on useful info/case law to include in defence would be greatly appreciated.

[AndyOrch]

Simply refer to your last WS that you used for the Summary Judgment application...you can add update and edit accordingly.Make a small mention of the failed summary judgment application,,,how it failed and how the claimant misled you into thinking they had vacated.....don't over do it don't over complicate the WS.

 

Ideally I would wait until you receive the claimants WS...before finalising yours.

 

Its a bit late in the day now to be making CCA request....that should have been made with your CPR request as advised....and anyway you made one to the OC and also the claimant provided a response within its reply to your CPR.

 

I would have assumed you had already referred to the claimants WS in your WS opposing summary judgment? If not then yes you can include anything of merit.

 

Regards

 

Andy

[Ganymede]

Ideally I would wait until you receive the claimants WS...before finalising yours.

That defeats the point. It's supposed to be a simultaneous exchange of statements with neither Party seeing the others beforehand.

[AndyOrch]

That defeats the point. It's supposed to be a simultaneous exchange of statements with neither Party seeing the others beforehand.

 

In a perfect world Gany...if they even bothered to serve one

[Stressed150]

Thank you for your guidance

 

I have just had a check of my credit report, and it appears that first credit are recording information (defaults every month for the passed 6 months) against me on my creddit file, are they allowed to this, seeing as this is an account in dispute?

[AndyOrch]

Thank you for your guidance

 

I have just had a check of my credit report, and it appears that first credit are recording information (defaults every month for the passed 6 months) against me on my creddit file, are they allowed to this, seeing as this is an account in dispute?

 

Yes.....nothing to do with their claim

[Stressed150]

the claimant has now submitted a defence so need to write mine up,

 

 

they quote HSBC bank Plc v Brophy.

 

 

I have just read up on that case, and it seems that it's pointless to argue that the alleged agreement is unenforceable,

as per the HSBC bank Plc v Brophy case,

 

 

the judge decided that the signing the application was in effect an executed agreement despite the fact that the form being signed was an application form.

 

I'm quite concerned, I want to defend but now I don't know where to start

[AndyOrch]

You mean they have submitted a witness statement...not a defence?

 

In Brophy v HFC Bank Limited [2010] EWHC 819 (QB) where the High Court confirmed the definition of “credit limit” in the credit card agreement (expressed as “Your credit limit will be determined by us from time to time and notified to you”) complied with both Schedule 1 and Schedule 6 of the Consumer Credit (Agreements) Regulations 1983

 

A credit card agreement stated that the credit limit ‘will be determined by the bank from time to time and notified to you’. The debtor argued that the application form which he signed was merely an agreement to enter into a prospective regulated agreement, and that the definition of the credit limit did not comply with the Consumer Credit (Agreements) Regulations. Neither of those ingenious arguments worked.

 

You have not argued your credit limit as far as I can see from your defence and summary judgment Witness statement ?

[Stressed150]

Hi Andy

 

Does this mean that first credit quoting this, or indeed the case of HSBC v Brophy is irrelevant?

[Stressed150]

To my case, as I am not arguing the credit limit amount per se, however, the application they have sent me in response to CPR is indeed illegible and does not contain the credit amount, also the TandC attached on a seperate page do not relate to the account as they stipulate that late payment towards the account would be £20.00, however the attached account statements clearly indicate that fees of £25.00 were added to the account, is this worth pointing out as part of my defence/WS?

[AndyOrch]

Hi Andy

 

Does this mean that first credit quoting this, or indeed the case of HSBC v Brophy is irrelevant?

 

Im not sure Stressed without sight of their witness statement and its contents (verbatim) on what pretext they are referring/relying on.The above was just the crux of the case that you refer to.

 

Regards

 

Andy

[Stressed150]

Claimants Witness statement

 

The claim relates to a halifax credit card ref xxxxx. On xx/xx/xx the defendant applied for and obtained a credit card. a copy of the signed agreeemnt is at page x and the termsn and conditions applicable at the time are at pagesx to x. I refer to the text above the defendants signatire which states " This is a credit card agreement regulated by the consumer credit act 1974. Sign it only if you want to be legally bound by its term".

 

Pursuant to the HBOS reorganisation act 2006, Bank of scotland plc acquired the assets and liabilities of halifax plc. The act came into effect on xx/xx/2007. Attched at pages x to x are the terms and conditions between the defendant and bos current at the date of default. at page xx I attatch the London gazette notice dated xx/xx/2007 confirming the transfer.

 

Attached hereto at pages xx to xx are the available statements of account, from xx/xx/xx to xx/xx/xx. It is evident that the defendant used the card to purchse goods and services. She also used the card to obtain cash advances.

 

The last payment received on xx/xx/xx in the sum of xx, page xx. Thereafter ni further paymens were recieved and charges applied in respect of late payment/overlimit fee/letter fees and interest. The last staement issued was on xx/xx/xxx and the account then passed to recoveries as evidecnt fron the tranbsaction hisotry at page xx because no statements are issued once the account is closed. The balance owed on xx/xx/xx was xxxx.

 

On xx/xx/xx a default notice was issued. At page xx is the computer screen entry wuth the credit card number xxxxxxxxxxxxxx and the balance at xxxx. I rerfer to page x of the staements showing the exact balance at the date of the default,. At pages x to x is the default notice dated xx/xx/xx, putting the defendant on notice that she must pay xxxx into her account "before xx/xx/xx" being the 14 days notice required under section 88 of the consumer credt act 1984.

 

At page x is the termination notice, dated xx/xx/xx I note that it was issued one day before the expiry day notice. I refer to the staements at pages x to x showing the account had infact not been terminated despite the termination notice. I therefore submit that defect in the termonation notice did not prejudice the defendant.

 

ASSIGNMENTS

 

On xx/xx/xx the debt was assigned ffrom BOS to 1st Credit finanace 5 ltd. A copy of the notice of assignment dated xx/xx/xx is at page x. The ntice was sent to xxxxxxxxxxxx. Attached at page xx to xx is the introductory letter of the same date. and also sent to the same address. For the avoidance of doubt, both documents were previously sent to an alternative address at xxxxxxxxxx on xxxx, following a mis-trace of the defendants address when the account was first assigned. I confirm that the address was corrected and all corresspondance was sent to xxxxxxx from xx/xx/xx.

 

On xx/xx/xx 1st credit finance chnaged its name to CAI finance limited. A copy of the notice of chnage is at page x to x. Subsequently on xx/xx/xx the debt was assigned to the claimant and a copy of thr notice of assignemnt is at pagex.

 

The claimant attempted to recover the debt from the claimant but to no avail. Attached at page x is the letter from connaught collections (a trading style of 1st credit limited) informing the defendant that the matter was being passed to walker morris solicitors foir the purposes of recivering the debt. on xx/xx/xx county court proceedings were issued at the county court business centre.

 

DEFENCE AND PROCEEDINGS

 

I refer to the defence dated xx/xx/xx. The defendant aserts that the particulars of claim are "vague" and that she requires proof of the claim; and that she requires disclosure documentation.

 

At pages xx to xx is the defendants CPR 31.14 request dated xx/xx/xx. At pahes xx to xx is the claimants letter to the defendant enclosing documentation. Although CPR 31 does not apply to this claim ( because its allocated to the samll claims track). the claimant did comply with the request nonetheless by disclosing documentation within its control and possession. Followign disclosure a furtehr letter was sent on xx/xx/xx (page x) informing the defendat of the claimants intention to apply for summary judgement. On xx/xx/xx the claimant made application and a hearing was listed on xx/xx/xx.

 

The claimnats application was based in the defence. In response to the application the defendant served a witness satement dated xx/xx/xx, raiasing new issues concerning the enforceability of the credit agreement, the validity of the default notice, and the effectiveness of the notice of assignment. A copy of the witness sattement and exhibits it at pages xx to xx. Given the new issues raised the application was withdrawn.

 

In respect of the issues raised in the witness satement of xx/xx/xx, the claimants position is as follows:-

a. The defendabt admots thate she "held accounts with the halifax".

b. The signed application form at page x refers to the same terms and conditions and is executed by the defendant and the halifax plc. I refer to the case of HSBC Bank Plc V Brophy [2011] ALL ER (D) 25 (FEB) which held that by signing and retirning the application form the applicant was applying for credit and agreed to be bound by the terms and conditions to satisfy the requiremnets of section 61 of the consumer credit act 1974. The form at page x makes clear that it contained a request for credit and upon signing the defendant agreed to be legally bound by the terms.

c. The default notice at page xx to xx is in compliance with section 88 of the consumer credit act 1974. I refer to paragraph 9 above in respect of the defect in the termination notice and confirm that the defendant has not disclosed evidence that she would have remedied the breach within the notice period.

d. the balance of the debt is evident from the statements and the payment history at page x.

e. The wrong notices of assigment were incorrectly referred to in the summary judgement application and the correct notices are at pages xx to xx.

f. The claimant contends that it has complied with its duty under section 78 of the consumer credit act 1974 and in light of the case of Carey vs HSBC Bank plc and other cases [2009] EWHC 3417 (QB) by supplying true copies of the credit agreement to the defendant.

 

CONCLUSION

 

The defendant rasies technical arguments in order to avoid payment of the debt. She does not deny incurring the debt and/using the credit card to purchase goods or services

 

I submit that judgement should be entered against the defendant together with fixed costs awarded as follows:

a court issue fee £80

b Solicitor costs £100

c Hearing fee £110

 

Staement of truth

etc

etc

[AndyOrch]

And if you could post the final draft of your Witness Statement.....in response to the above.

[Stressed150]

In the process of writing this as we speak, I shall post as soon as possible.

 

Also if I have to submit WS to court and claimant 14 days before hearing does that mean 14 working days (not indicated in the directions)

 

Many thanks

[AndyOrch]

Working days.

[Stressed150]

Ok, here's what I have so far,

I realy dont know if Im on the right tracks with this,

also I think I shot myself in the foot, as at summary judgement

the cliamant had submitted a computer screen shot of alleged default notcie with names dates and amounts blanked out,

 

I then cleverly decided that I would submit the actual default notice as part of my defence as this was not meeitng section 88 of the consumer credit act,

and account was terminated one day short

. Surprise, surpirse, the claimant has now submitted this defaukt notice as part of witness statement.

 

The claimant claims that it has now supplied me with the relevant documentation required and complied with its duty under section 78 of the consumer credit act 1974.

In doing so, the claimant relies on the document attached at page X to which the claimant refers to as the signed agreement.

 

I refer to the text at the top of this document, titled “Credit Card Application”.

I further draw your attention, to the legibility of this application.

I refer to section 61(1) of the consumer credit act “ A regulated agreement is not properly executed unless:

“a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement other then implied terms and the document is when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

 

I further request the claimant to evidence where in the document it meets the requirement under section 65(1) of the consumer credit Act 1974

“A term stating the credit limit or the manner in which it will be determined or that there is no credit limit”.

 

In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement

, I refer to point x of page x of the terms and conditions attached to the application form which the claimant claims was signed on xx/xx/2002

“ What happens if you break the agreement

If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

 

I refer to page x of the enclosed statements as part of the claimants claim; titled statement date xx/xx/2006. In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page x a further late fee of £25.00 dated xx/xx/2006.

It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened.

 

On xx/xx/xx the claimant filed a claim for summary judgement,

following representation of my witness statement, the claimant wrote to me advising me that in light of my evidence it would withdraw its application for summary judgement,

 

 

I refer to page x. On xx/xx/xx I received a letter from Romford County Court advising me the claim had been allocated to the small claims track,

and that a hearing had infact taken place on xx/xx/xx before district judge xxxxxx,

and therefore highlighting my failure to attend the hearing, despite being given notice.

 

The claimant also contends that it had mistraced an address to which it claims, all notices of assignment were posted, and that this has now been rectified,

I refer to the claimants witness satemet for summary judgement from pages xx to xx.

In particular I refer to page x of the claimants witness statement in support of summary judgement,

and highlight the date at which the claimant claims the account was opened, as this is clearly different to the date quoted in this witness statement.

 

Also this section at the appropriate part.....

 

In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement,

I refer to point x of page x of the terms and conditions attached to the application form which the claimant claims was signed on

“ What happens if you break the agreement

If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

 

I refer to page x of the enclosed witness statements as part of the claimants claim; titled statement date xx/xx/2006.

In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page x a further late fee of £25.00 dated xx/xx/2006.

 

I refer to page x of the claimants witness statement in particular point x

“ A copy of the signed agreement is at page x and the terms and conditions applicable at the time are at pages x to x.”

 

It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened.

 

Any guidance please?

 

I need to complete the final draft of this today, as I need to file by Monday at the latest, any further guidance on this will be much appreciated just to give me an indication as to whether I'm on the right tracks or not.

 

Many thanks

 

Also half the account is made up of charges and ppi should the judge rule in favour of the claimant am I still able to dispute these charges and ppi etc?

[AndyOrch]

I would advise you tidy it a little stressed...requires the relevant headings Claimant v Defendant Court Claim number and must be headed Witness Statement of the defendant and your name.

 

Add paragraphs and numbers and space it for easy reading....then I will look at it again.

 

And yes you can seek redress on your PPI and charges should the claimant attain judgment in this claim.

 

Regards

 

Andy

[Stressed150]

IN THE COUNTY COURT AT xxxxx CLAIM NO xxxxxxx

 

 

BETWEEN

 

 

1st CREDIT (FINANCE) LIMITED

 

 

and

 

 

xxxxx

 

 

 

 

Witness Statement of xxx

 

I xxxxx, of xxxxxxxxxxxxxxxxxx, the defendant will state as follows:

 

1.The claimant claims that it has now supplied me with the relevant documentation required and complied with its duty under section 78 of the consumer credit act 1974. In doing so, the claimant relies on the document attached at page X to which the claimant refers to as the signed agreement.

 

2.I refer to the text at the top of this document, titled “Credit Card Application”. I further draw your attention, to the legibility of this application. I refer to section 61(1) of the consumer credit act “ A regulated agreement is not properly executed unless:

“a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement other then implied terms and the document is when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

 

3. The document which the claimant relies upon to bring enforcement action does not contain the required terms under the consumer credit agreements, and consequently is unenforceable.

 

4. I further request the claimant to evidence where in the document it meets the requirement under section 65(1) of the consumer credit Act 1974 “A term stating the credit limit or the manner in which it will be determined or that there is no credit limit”.

 

5. In so making its claim the claimant refers to Carey v HSBC Bank plc in that it has supplied the defendant with true copies of the credit agreement, I refer to point x of page x of the terms and conditions attached to the application form which the claimant claims was signed on 26/03/2002

 

“ What happens if you break the agreement

If you or an additional cardholder break the agreement we will charge you for any losses… you must also pay the following account maintenance fees £20.00 if you do not make the minimum payment by the due date, £20.00 if your account balance is over the credit limit, £20.00 each time a direct debit, cheque, or other item is not paid when presented for payment.”

 

6. I refer to page x of the enclosed statements as part of the claimants claim; titled statement date xx/xx/2006. In particular I refer to the late fee dated xx/xx/2006 for the amount of £25.00, and also on page x a further late fee of £25.00 dated xx/xx/2006.

 

7. I refer to page x of the claimants witness statement in particular point x “ A copy of the signed agreement is at page x and the terms and conditions applicable at the time are at pages x to x.”

 

8. It is my view that the claimant is unable to provide a copy of the terms and conditions at the time it claims this account was opened. I refer to judge Waksman judgement in Carey v HSBC, paragraph 234(4) “If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms”.

 

9 .On xx/xx/xx the claimant filed a claim for summary judgement, following representation of my witness statement, the claimant wrote to me advising me that in light of my evidence it would withdraw its application for summary judgement, I refer to page x. On xx/xx/xx I received a letter from Romford County Court advising me the claim had been allocated to the small claims track, and that a hearing had infact taken place on xx/xx/xx before district judge xxxxxx, and therefore highlighting my failure to attend the hearing, despite being given notice.

 

10. The claimant also contends that it had mistraced an address to which it claims, all notices of assignment were posted, and that this has now been rectified, I refer to the claimants witness statement for summary judgement from pages xx to xx. The address to which the letters are addressed, clearly different to the address to which this claim relates, and to which the claimant claims “remains the defendants current address”.

 

11. It is denied that notices of assignment were ever received.

 

12 . I refer to page x of the claimants witness statement in support of summary judgement, and highlight the date at which the claimant claims the account was opened, as this is clearly different to the date quoted in this witness statement.

 

13. To date the claimant has failed to provide a valid agreement, therefore, with the courts permission, the claimant is put to strict proof:

 

A. Show and disclose how the defendant has entered into an agreement

B. Show and disclose how the claimant has reached the amount claimed for

C. Prove that notices of assignment were ever sent to the defendant

 

14.. In the circumstances, until such time that the claimant can comply and evidence the above pursuant to the CCA1974 I invite the Court to deny the claimants claim.

 

Statement of Truth

The defendant believes that the facts stated in this Witness Statement are true

 

Signed

Edited July 5, 2015 by Andyorch
formatting/additions.

[Stressed150]

OK, so this is my final draft, Id like to egt this sent off tomorrow, or same day on Monday, as in court on 24th July. I feel I should mention about the default notice here, however, not sure what exactly to say, other then it does not meet section 88 of consumer credit act, and was terminated one day before, however, as the claimant points out, the account was not infact terminated by the OC as they continued to add charges and interst after termination of the account, which was later rectified.....

 

Many Thanks in advance

[citizenB]

I have popped some spacing in to make it easier to read.

[Stressed150]

Thank you citizen B

[Stressed150]

Is it frowned upon if I hand write the page numbers ? I'm really concerned as my WS will reach court and claimant 1 day late,