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

[AndyOrch]

They are all the same company Stressed....a court claim can only be issued by the legal owner in their name..the reason behind this company having (5 at last count) names and changing.....well Ill let you work that out.

[AndyOrch]

Stressed what dates must you comply with standard disclosure and exchange of Witness Statements?...refer to your Notice of Allocation.

 

Andy

[AndyOrch]

No that is the original application/agreement...it has your signature and date...whether its enforcible would be down to whether the prescribed terms are contained within the main body of the agreement.

[AndyOrch]

Stressed can you scan in a copy of their WS please...lets have a look at the points they plead.

 

Andy

[AndyOrch]

Ah so this is a separate application/hearing for Summary Judgment...not related to the Notice of Allocation/ Directions.

 

Stressed I think it would be wise if you read the following before preparing a response to the above application

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

[AndyOrch]

Yes you can submit a WS in objection/response to their application for SJ...this must be served not less than 7 days before the hearing for SJ.

 

Was this application attached to their copy DQ? If so did they state in their DQ that they were intending to make application?

[AndyOrch]

Okay well you dont get a separate claim form...this runs parallel to the claim...you should get a copy of their application (n244) and the WS in support (which you have posted) How did you get that?

 

It is true in the fact that it is judgment without trial...its a short cut to judgment.....a Witness Statement in response to this application is similar to your main WS for trial but its drafted slightly different in that you fight each point that they have referred to and which their application relies upon.You have to cast doubt and pursued the judge to deny said application and that your defence does have merit and should proceed to trial...but you have to find the cracks in their statement first.

[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.

[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.

[AndyOrch]

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

 

Regards

 

Andy

[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

[AndyOrch]

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

 

Posted 16th October

[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

[AndyOrch]

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

[AndyOrch]

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

[AndyOrch]

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

[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

[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

[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

[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

[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 ?

[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

[AndyOrch]

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

[AndyOrch]

Working days.