claim form IND/Heggarty on old Lloyds (5 and a half years) credit card debt***Claim Dismissed***

[Miscreant]

Looking into the Law of Property act, which the claimant states to be acting in accordance with, I found this relating to deeds.

 

https://www.legislation.gov.uk/ukpga/1989/34/section/1

 

An instrument shall not be a deed unless—

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

 

An instrument is validly executed as a deed by an individual if, and only if—

(a)it is signed—

(i)by him in the presence of a witness who attests the signature; or

(ii)at his direction and in his presence and the presence of two witnesses who each attest the signature; and

(b)it is delivered as a deed

 

 

The document I have been sent at no point titles itself as a deed, nor does it make any reference anywhere to it being a deed.

 

There are no witness signatures present on it.

 

Apparently case law has shown that a party to the agreement cannot act as witness to the other signature on the document. I'll have to research further to find the exact case law though.

 

Even so, this seems to rule out the document provided as being a deed. As the court has ordered that a deed is provided it looks as though the claimant has failed to satisfy the order with this document also.

[Miscreant]

A party to the deed cannot witness the signature of another party to the deed (Seal v Claridge (1881) 7 QBD 516 at 519).

[Miscreant]

Direct question.

 

How much can I fairly ask for in costs for this fiasco?

 

£255 for wasted court costs for the previous hearing.

 

Travel expenses for 2 hearings.\

 

Anything else?

 

I have had too spend a lot of time of this to uncover how much of a facade the whole thing is. Plus the unnecessary stress caused to my family as well as the CCJ on my credit file for a fair period of time. £500 reasonable for time and expense?

[dx100uk]

time off work £90 per day [court hearings}

[AndyOrch]

If you had to take unpaid time off work to attend the court hearing....some court request proof that it was unpaid time.

 

Andy

[Miscreant]

Another question.

 

The Law of Property Act I referenced above is in relation to

 

"contracts for the sale or other disposition of interests in land"

 

Does the debt still count as an interest in land?

 

If not, where are the directions for how to correctly execute a deed for the purposes of debt assignment?

 

Is any asset essentially an asset in land?

[Miscreant]

IN THE COUNTY COURT AT ****

CLAIM NO: ******

 

IND LIMITED

 

Claimant

 

And

 

 

 

*********

Defendant

 

 

WITNESS STATEMENT

 

 

 

I, **** ******, of ***** ******** ******, will state as follows.

 

 

I am the Defendant in this claim

 

 

I rely on my own personal knowledge of the events relating to this claim and also on the evidence provided by the Claimant.

 

 

The Claimant issued a claim via the County Court Business Centre in September 2014 with no evidence or documents to support it at the time.

 

 

Upon receipt of the claim form the Defendant issued a request pursuant to s.77/78 of the Consumer Credit Act for a true copy of the Consumer Credit Agreement as well as information in relation to the state of the alleged account in the form of account statements to clarify the total amount in question. This was sent recorded delivery and the tracking number was provided with the defence.

 

 

No information was provided before the deadline date to submit the defence for the claim.

 

 

Acknowledgment of service was submitted on time. A defence was submitted on time. A further copy of the s.77/78 request was included with the defence and passed to the Claimant by the court.

 

 

A copy of this letter is exhibited on page 24 of the Claimant’s witness statement as Exhibit HM5.

 

 

The Claimant failed to offer any kind of response to the s.77/78 request, failing to issue a response within the statutory time limit of 14 days. The Defendant respects that documents can be difficult to obtain and leniency can be afforded but the Claimant offered no explanation as to why they could not fulfil the s.77/78 request and the Defendant was given no further information for over three and a half years. This is clearly in breach of the correct process for answering a legitimate s.77/78 request.

 

 

The Claimant failed to respond to the court’s directions and failed to respond to the directions questionnaire that would have been included with the copy of the Defendant’s defence that was sent to the Claimant by the court in 2014.

 

 

By the court’s own rules, failing to reply to the directions questionnaire is grounds for the claim to have been struck out, the Defendant questions if there was an error by the court in Northampton in not sanctioning this claim due to such failings on the part of the Claimant. If no sanctions are to be applied then the Defendant requests that the Claimant’s failure to comply with the correct procedure is noted alongside the clear failure to respond to a s.77/78 request. No action was taken to remedy either of these failings for a period exceeding three and a half years.

 

 

On April 24th 2018 the claimant issued a reply to the s.77/78 request. At no point was there an explanation for the delay.

 

 

A copy of this letter is exhibited at page 27 of the Claimant’s Witness Statement, marked as HM6

 

 

The CCA provided was a reconstituted agreement and not the signed original. The Claimant failed to make this clear as per “Guidance to the duty to give information under sections 77,78 and 79 of the Consumer Credit Act 1974. Section 13.1.4 (2)”

 

 

The credibility of statements issued by the Claimant is depreciated upon making this claim.

 

 

The Claimant provided no clear account details pursuant to the s.77/78 request. No statement showing the origin of the debt was provided and the statement given is lacking in detail as to the account number, name or address of account holder or any details pertaining as to any payments or transactions.

 

 

On April 24th 2018 Claimant issued a response to the defence issued in 2014.

 

 

Based on the evidence provided the Defendant could see no worth in the response issued by the Claimant and awaited contact from the court as per the correct procedure. The Defendant contends that the Claimant may not reply to the defence unless requesting allocation to trial or submitting an application to strike out the defence as per the correct process.

 

 

On July 12th 2018 the Claimant issued an application for judgement in default of a defence supported by a witness statement that claimed as truth that

 

“the Defendant failed to file a defence.”

 

I refer to Exhibit DE1. The first page from the witness statement provided by the Claimant in support for their application for Judgement in Default.

 

 

This statement was proven as untrue as demonstrated by the court records as well as the Claimant’s previous communication referencing the defence. As such the credibility of statements from the witness for the Claimant is questioned.

 

 

The Claimant previously demonstrated that they are in possession of a copy of the Defendant’s defence, clearly sent by the court.

 

 

The defendant asks whether giving false testimony in the form of a witness statement is abuse of the court process.

 

 

The Claimant claims that due to an “administrative error” they failed to continue with proceedings in 2014 by not requesting judgement in default at that time.

 

 

As judgement in default was not an option at that time due to a defence being submitted and as the Claimant had failed to respond to the s.77/78 request thereby prohibiting the Claimant from proceeding with further enforcement action, it is clear that the Claimant did in fact fail to respond to the court’s directions and instead of doing so after a three and a half year delay and explaining that the reason for the delay was due to a lack of evidence to substantiate the claim made in 2014, the Claimant made a new application for judgement in default and ignored the court’s directions entirely. The claimant has to date not accepted that a defence was submitted despite providing evidence that the court did in fact provide them with it.

 

 

The Defendant notes that the credibility of the witness is questioned again due to these claims.

 

DEFENCE

 

The Defendant has received no contact from the Claimant and is only aware of the claim through the issue of the claim form.

 

The defendant disputes having received any correspondence from the Claimant prior to the claim form in 2014.

 

 

The claimant has produced 2 pieces of evidence to prove that correspondence was made in the form of documents each pertaining to be a Notice of Assignment.

 

 

In relation to this evidence the court ordered on 6th November 2018 that the Claimant provide copies of the Notice of Assignment “as sent” to the defendant. “As sent” is taken to mean an exact copy of what was sent. The Claimant has failed to do this.

 

 

These letters are shown on pages 18 and 19 of the Claimant’s Witness Statement and marked as Exhibit HM3

 

 

The Notice of Assignment allegedly sent from the Claimant on July 14th 2011 can not be seen as a valid document from 2011. The information at the bottom of the letter states;

 

Authorised and Regulated by the Financial Conduct Authority.

 

 

The FCA was not formulated until 1st April 2013 and as such any letter claiming to be from 2011 with reference to the FCA is seen not to be a document printed before 2013 and as such can not be proof of a document that was allegedly sent in 2011. The credibility of statements issued by the Claimant is raised in relation to this point as the evidence presented does not support the claim that has been made.

 

 

The Notice of Assignment allegedly sent from LloydsTSB on July 14th 2011 has information at the bottom of the document that is illegible. The defendant cannot ascertain the authenticity of a such a document if the information within it cannot be read. The defendant questions the acceptability of such a document if it is presented to be “as sent.” If such a document had been received and had not been completely legible the defendant maintains the position that such a document would not have been properly served. The authenticity of this document is questioned.

 

 

In addition, no proof of postage or delivery was provided for either of these documents, despite the insignificant cost of doing so, as such further doubt is cast on whether these documents were sent at all.

 

 

As shown by the evidence presented by the claimant, the alleged debt assignment notification was not properly served upon the Defendant and as such the Claimant has no grounds to pursue further action upon the Defendant.

 

 

Due to failure to issue a correct Notice of Assignment the Defendant requests that the claim is struck out.

 

 

The Defendant has not been provided with any documents to prove the existence of any debt nor any proof that the Claimant has any right to be making demands upon the Defendant.

 

 

A s.77/78 request was made in 2014. As previously demonstrated the Claimant failed to respond for a period of 3 years and 7 months.

The Claimant did eventually issue a reply on April 24th 2018. The Claimant’s reply is of no

worth due to the following:

 

 

The address details given on the CCA are incorrect. I refer to Exhibit MV2. The electoral register clearly states that the address of the Defendant at the time of execution of the alleged debt was not that which is stated on the CCA. The documents demonstrate the address from 1998 until 2002 as being ****** ******. The recent credit report details show that the Defendant is associated with 2 addresses but both are variations of the same address. At no point is there any association of the address mentioned by the Claimant.

The address details on the CCA are not even accurate with regards to the details that the

Claimant presents as having on file. I refer to paragraph 9 of the Claimant’s witness statement

dated 30 October 2018. The address given is inconsistent with the address claimed on the

Agreement.

 

 

Such a mistake, while acceptable within less formal communication as typos and “administrative errors” can occur, within a contractual agreement is not acceptable. In order to attain such an agreement one would need to present the creditor with proof of address in no less than 2 forms unless a suitable authorised photographic ID could be presented.

Non of these forms of identification would present the address incorrectly as shown on the

CCA provided and as previously demonstrated the address is completely incorrect.

 

 

The CCA is unenforceable due to Guidance to the duty to give information under sections 77,78 and 79 of the Consumer Credit Act 1974 Section 13.1.4 (1) The copy of the executed agreement should be a “true copy.” And (3) The name and address at the time of execution must be provided. The address information is completely incorrect, as such the Claimant has no authority to be taking enforcement action against the Defendant.

 

 

The account statement provided is completely lacking in any detail that links the alleged figures in any way to the defendant.

The claimant has not demonstrated in any way how the total figure that is being claimed was

reached.

It is noted that on 6th November 2018 the Claimant was ordered to provide account statement

information by 20th November 2018. It was made perfectly clear within the court room that

this information was to outline every transaction made from the inception of the alleged

agreement in November 2000 up until the final balance to allow the defendant clarity as to

where the total amount claimed originated.

The Claimant has to date failed to provide the information requested and as such has failed to

satisfy the court order and also failed to satisfy the s.77/78 request made in 2014.

 

 

Due to the Claimant producing a non enforceable CCA and failing to supply the account statement details as ordered, the Defendant requests that the Claimant’s claim be struck out

 

 

The Claimant is claiming for an alleged debt of 3,371.07 as 3/1/08 and for interest calculated from that date. The Claimant’s claim was issued on 5/9/14

 

 

The 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 Limitations Act 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 was accrued for the benefit of the Claimant.

 

 

The default date is stated as being 3rd January 2008. The claim was issued in September 2014 and as such was statute barred.

 

 

The defendant disputes any payment made after the date of default and denies authorising any third party to make payments on his behalf.

Unless strict proof is provided that the defendant personally made any payments after the

date in question or signed an agreement allowing another party to do so, there is no evidence

beyond doubt that the defendant did in fact make payments beyond the alleged date of

default.

 

 

The account information provided is completely lacking in any detail that links it in any way to the defendant, nor does it specify where any payments came from and as such the defendant requests that this evidence is dismissed unless it is supported by any further evidence that may legitimise it as being what the claimant claims it to be. The document is labelled as page 1 of 1 and is accompanied by no other evidence giving clarity on exactly what account it is specified to be relevant to. As no further evidence has been provided the defendant maintains the position that the alleged debt is stated barred.

 

 

The Claimant’s claim to be entitled to 5,184.00 or any other sun of relief is denied.

 

 

With relation to the court order made on 6th November 2018

 

Aside from the lack of an enforceable CCA, a valid Notice of Assignment or any account statements the claimant has failed to provide a valid Deed of Assignment as required under the Law of Property Act 1925 (ammended 1989) to demonstrate that an actual valid instrument has been created to show that the alleged debt has changed possession from one party to an

 

The Claimant presents Exhibit HM2 as being such a deed, though under the Law of Property (Miscellaneous Provisions) Act 1989, Section 1:

 

“An instrument shall not be a deed unless—

 

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

 

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

 

An instrument is validly executed as a deed by an individual if, and only if—

 

(a)it is signed—

 

(i)by him in the presence of a witness who attests the signature; or

 

(ii)at his direction and in his presence and the presence of two witnesses who each attest the signature”

 

A notable clarification from case law (Seal v Claridge (1881) 7 QBD 516 at 519).

 

“A party to the deed cannot witness the signature of another party to the deed.”

 

 

 

 

The Claimant has not presented any documentation that satisfies the criteria outlined by the Law of Property Act, which it references throughout the witness statements provided.

 

 

In the absence of any document that satisfies these criteria the defendant claims that the claim made by the Claimant is of no worth as no valid deed has been shown to have been passed to the claimant.

 

 

 

The claimant has had ample time to present to the court the evidence it required to legitimise the claim that is being made. The claimant has failed to provide such evidence despite a three and a half year stay of the court.

 

 

The Claimant clearly states that “the evidence speaks for itself.” The defendant is in agreement and has demonstrated how the evidence provided proves to undermine the statements made by the claimant.

 

 

The credibility of statements made by the claimant has been shown to be questionable and in the absence of a true Deed of Assignment as ordered by the court the Defendant shows that not only is the Claimant’s claim without merit due to the Claimant failing to follow the correct process or to demonstrate that they have an enforceable CCA or that the alleged debt is not in excess of the limitations act, but the entire claim is without substance due to no Instrument that satisfies the criteria under the Law of Property Act to be accepted as being a Deed of Assignment has been presented.

 

 

Due to the combination of any or all of the above points the Defendant respectfully requests that the Claim is Stuck Out with immediate effect and that the Defendant is awarded costs equal to £255 wasted costs for the previous hearing to set aside the Judgement in Default which was made under false testimony. Also the defendant asks that the court consider awarding him £90 per day, which I understand is the statutory amount and not reflective of the true loss, for lost earnings due to the court appearances. The total asked for being £435 or whatever figure the court deems to be appropriate.

[Miscreant]

This needs to be delivered by Tuesday at the latest so any suggestions or advice would be greatly appreciated.

 

Thanks.

[AndyOrch]

Far too wordy..I lost interest at ....." On April 24th 2018 the claimant issued a reply to the s.77/78 request."

 

This is a credit card claim...therefore its section 78.....lose the 77 on the 8 references made to it.

 

Andy

[Miscreant]

So should I paraphrase a bullet point the argument more?

 

I'll edit 77 out. Thanks.

[AndyOrch]

What exactly have you been directed to submit ?

[Miscreant]

Any witness statement in support of my defence and any documents that I will rely on in court.

 

As I was never given DQs in 2014 and previously it went straight to judgement in default and then a set aside hearing I have not yet submitted a witness statement, only the original defence.

[AndyOrch]

Ah okay.....well it needs to be shorter succinct points dealing with each issue and run in chronological order....take a look at the claimants statement in support of its application to give you a guide.

 

Give it headings in bold to break up the length...

 

The claim

 

Response

 

Timeline of events

 

Claimants application to lift the stay

[Miscreant]

Okay.

 

I'll edit it right down.

 

As for the points raised though?

 

I believe I have essentially gone through it in chronological order, though I detailed the claimant's failure to follow the correct procedure before detailing my defence so as to highlight the lack of credibility in the witness.

 

The claimant's application to lift the stay has not really been addressed. The stay is lifted and this is the final hearing.

 

The claimant is lacking in paperwork that supports their claim.

[AndyOrch]

Well I would reiterate the application in your timeline and how the claim was never allocated and point out the errors made in the courts process which facilitated the claimants application denying yourself the opportunity to submit statements or evidence etc etc....

[Miscreant]

I am the Defendant in this claim

 

I rely on my own personal knowledge of the events relating to this claim.

 

BACKGROUND

 

The Claimant issued a claim via the County Court Business Centre on 5th September 2014.

 

On 10th September 2014 the Defendant issued a request pursuant to s.78 of the Consumer Credit Act for a true copy of the Consumer Credit Agreement as well as information in the form of account statements to clarify the total amount in question. This was sent recorded delivery and the tracking number was provided with the defence.


A copy of this letter is marked as Exhibit DE1.


No information was provided before the claim form deadline and as such acknowledgment of service was submitted on time and a defence was submitted on time. A further copy of the s.78 request was included with the defence and passed to the Claimant by the court.

 

The Claimant failed to respond to the s.78 request within the statutory time limit and offered no explanation as to why they could not fulfil the request. This is clearly in breach of the correct process and of CPR Pre Action Protocols for Debt Claims 5.2:


If the debtor requests a document or information, the creditor must –


(a) provide the document or information; or


(b) explain why the document or information is unavailable, 


within 30 days of receipt of the request.

 

DEFENCE

 

The Defendant has received no contact from the Claimant and is only aware of the claim through the issue of the claim form.

 

On 6th November 2018 the Claimant was ordered to provide copies of the Notice of Assignment “as sent” to the defendant. “As sent” is taken to mean an exact copy of what was sent. The Claimant has failed to do this.

The claimant has produced 2 documents, each pertaining to be a Notice of Assignment.

 These letters are marked as Exhibit DE2

 

The Notice of Assignment allegedly sent from the Claimant on July 14th 2011 cannot be seen as a valid document from 2011. The information at the bottom of the letter states;

 

Authorised and Regulated by the Financial Conduct Authority.

 

The FCA was not formulated until 1st April 2013 and as such any letter claiming to be from 2011 with reference to the FCA is seen not to be a document printed before 2013 and as such can not be proof of a document that was allegedly sent in 2011. The credibility of statements issued by the Claimant is raised in relation to this point as the evidence presented does not support the claim that has been made.

 

The Notice of Assignment allegedly sent from LloydsTSB on July 14th 2011 has information at the bottom of the document that is illegible. The defendant cannot ascertain the authenticity of a such a document if the information within it cannot be read. The defendant questions the acceptability of such a document if it is presented to be “as sent.” If such a document had been received and had not been completely legible the defendant maintains the position that such a document would not have been properly served.

 

In addition, no proof of postage or delivery was provided for either of these documents, despite the insignificant cost of doing so.

 

As shown by the evidence presented by the claimant, the alleged debt assignment notification was not properly served upon the Defendant and as such the Claimant has no grounds to pursue further action upon the Defendant.

 

The Defendant has not been provided with any documents to prove the existence of any debt nor any proof that the Claimant has any right to be making demands upon the Defendant.

 

A s.78 request was made in 2014. As previously demonstrated the Claimant failed to respond for a period of 3 years and 7 months.
The Claimant issued a reply on 24th April 2018.

The CCA provided was a reconstituted agreement and not the original. The Claimant failed to make this clear as per “Guidance to the duty to give information under sections 77,78 and 79 of the Consumer Credit Act 1974.” Section 13.1.4 (2)

The address details given on the CCA are incorrect. I refer to Exhibit DE3. The electoral register clearly states that the address of the Defendant at the time of execution of the alleged debt was not that which is stated on the CCA. The documents demonstrate the address from 1998 until 2002 as being *************. At no point is there any association with the address mentioned by the Claimant.

The address details on the CCA are not even accurate with regards to the details that the Claimant presents as having on file. I refer to paragraph 9 of the Claimant’s witness statement. The address given is inconsistent with the address claimed on the Agreement.

 

The CCA is unenforceable as per “Guidance to the duty to give information under sections 77,78 and 79 of the Consumer Credit Act 1974” Section 13.1.4 (1) The copy of the executed agreement should be a “true copy.” And (3) The name and address at the time of execution must be provided. The address information is completely incorrect, as such the Claimant has no authority to be taking enforcement action against the Defendant.

 

The account statement provided is completely lacking in any detail that links the alleged figures in any way to the defendant. I refer to Exhibit DE4. 
The claimant has not demonstrated in any way how the total figure was reached. 
It is noted that on 6th November 2018 the Claimant was ordered to provide account statement information by 20th November 2018. It was made perfectly clear within the court room that this information was to outline every transaction made from the inception of the alleged agreement in November 2000 up until the final balance to allow the defendant clarity as to where the total amount claimed originated.
The Claimant has failed to provide the information requested.

 

The Claimant is claiming for an alleged debt of 3,371.07 as 3/1/08 and for interest calculated from that date. The Claimant’s claim was issued on 5/9/14

 

The 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 Limitations Act 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 was accrued for the benefit of the Claimant.

 

The default date is stated as being 3rd January 2008, though no default notice is provided.

The defendant disputes any payment made after the date of default and denies authorising any third party to make payments on his behalf.

Unless strict proof is provided that the defendant personally made any payments after the date in question or signed an agreement allowing another party to do so, there is no evidence beyond doubt that the defendant did in fact make payments beyond the alleged date of default.

 

The account statement provided is completely lacking in any detail that links it in any way to the defendant, nor does it specify where any payments came from. The document is labelled as page 1 of 1 and is accompanied by no other evidence giving clarity on exactly what account it is specified to be relevant to. As no further evidence has been provided the defendant maintains the position that the alleged debt is stated barred.

 

The Claimant’s claim to be entitled to 5,184.00 or any other sum or relief is denied.

 

TIMELINE OF EVENTS / CLAIMANT’S APPLICATION TO LIFT THE STAY

 

On April 24th 2018 Claimant issued a response to the defence issued in 2014.

The Defendant could see no worth in the response and awaited response from the court
.

Why did the Claimant not request allocation at this point?

 

On July 12th 2018 the Claimant issued an application for judgement in default of a defence supported by a witness statement that claimed as truth that

 

“the Defendant failed to file a defence.”

 

I refer to Exhibit DE5. The first page from the witness statement provided by the Claimant in support for their application for Judgement in Default.

 

This statement was proven as untrue as demonstrated by the court records as well as the Claimant’s previous communication referencing the defence. As such the credibility of statements from the witness for the Claimant is questioned.

 

The defendant asks whether giving false testimony in the form of a witness statement is abuse of the court process.

 

The Claimant claims that due to an “administrative error” they failed to continue with proceedings in 2014 by not requesting judgement in default at that time.

 

Judgement in default was not an option at that time due to a defence being submitted. 
As the Claimant had failed to respond to the s.78 request, prohibiting them from proceeding with further enforcement action, it is clear that the Claimant did in fact fail to respond to the court’s directions and failed to respond to the directions questionnaire included with the defence.

 By the court’s own rules, failing to reply to the directions questionnaire is grounds for the claim to have been struck out, the Defendant questions if there was an error by the court in Northampton in not sanctioning this claim due to such failings on the part of the Claimant and thereby facilitating the Claimant’s application to lift the stay in 2018 and request judgement, denying the Defendant the opportunity to provide statements or evidence in support of his defence.

 

IN RELATION TO THE COURT ORDER DATED 6TH NOVEMBER 2018

 

The claimant has failed to provide a valid Deed of Assignment as required under the Law of Property Act 1925 (amended 1989) to demonstrate that an actual valid instrument has been created to show that the alleged debt has changed possession from one party to another.

 

The Claimant presents Exhibit HM2 as being such a deed, though under the Law of Property (Miscellaneous Provisions) Act 1989, Section 1:

 

“An instrument shall not be a deed unless—

 

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

 

An instrument is validly executed as a deed by an individual if, and only if—

 

(a)it is signed—

(i)by him in the presence of a witness who attests the signature; or

(ii)at his direction and in his presence and the presence of two witnesses who each attest the signature”

 

A notable clarification from case law (Seal v Claridge (1881) 7 QBD 516 at 519).

 

“A party to the deed cannot witness the signature of another party to the deed.”

 

The Claimant has not presented any documentation that satisfies the criteria outlined by the Law of Property Act, which it references throughout the witness statements provided.

In the absence of any document that satisfies these criteria the defendant claims that the claim made by the Claimant is of no worth.

The claimant has had ample time to present to the court the evidence it required to legitimise the claim that is being made.

 

SUMMARY

 

The Claimant clearly states that “the evidence speaks for itself.” The defendant is in agreement and has demonstrated how the evidence provided proves to undermine the statements made by the claimant.

 

The credibility of statements made by the claimant has been shown to be questionable and in the absence of a true Deed of Assignment as ordered by the court the Defendant shows that not only is the Claimant’s claim without merit due to the Claimant failing to follow the correct process or to demonstrate that they have an enforceable CCA or that the alleged debt is not in excess of the limitations act, but the entire claim is without substance due to no Instrument that satisfies the criteria under the Law of Property Act to be accepted as being a Deed of Assignment has been presented.

 

Due to the combination of any or all of the above points the Defendant respectfully requests that the Claim is Stuck Out with immediate effect and that the Defendant is awarded costs equal to £255 wasted costs for the previous hearing to set aside the Judgement in Default which was made under false testimony. Also the defendant asks that the court consider awarding him £90 per day, which I understand is the statutory amount and not reflective of the true loss, for lost earnings due to the court appearances. The total asked for being £435 or whatever figure the court deems to be appropriate.

 

The hearing is for an hour so I will have more time than in the previous set-aside hearing.

 

As I failed to make certain crucial points in that hearing I need a detailed statement to which I can refer.

 

I should edit it more?

 

I guess I can take expanded notes into court with me yes?

Edited November 29, 2018 by dx100uk
merge

[AndyOrch]

In your opening paragraph you state " A further copy of the s.78 request was included with the defence and passed to the Claimant by the court."

 

Did you post your defence to MCOL ?

 

Attaching a copy of the section 78 was pointless and how do you know it was passed to the claimant by the court....do you mean just the defence not the section 78 ?

[Miscreant]

I emailed the defence to CCBC defendants with a copy of the s.78 request.

 

The claimant produced copies of the defence and the letter as Exhibits with their witness statement at the last hearing.

They tried to claim I had not submitted a defence and instead had sent a letter requesting further information.

The date given for receiving the letter was 7th October.

The date the defence was submitted.

The original letter was sent on 10th September and dated as such.

 

The judge didn't buy it and insisted it was clear that a defence was given.

 

I can edit this out though, as I cannot prove absolutely that this was sent to them at this time.

I was taking their statement as proof.

Edited November 29, 2018 by dx100uk
merge

[Miscreant]

The witness statement points out the following issues with the evidence provided.

 

Inconsistent information on the notice of assignment with relation to the date it was sent.

 

Illegibility of information on the second notice of assignment.

 

Lack of any details on the account statement to link it to me at all.

 

Lack of any other account statements

 

Incorrect address on the CCA

 

Assignment is not a properly executed deed.

 

 

All of these points are plain to see and could be raised at the trial.

 

Can I omit the details from the witness statement and raise the points in court instead?

 

That way the witness statement is much shorter and just outlines that I disagree with the evidence presented.

 

Supporting evidence is provided for the address and the rest is argued at the hearing.

[Miscreant]

Am I better showing all my cards now and presenting to the claimant and the court or would I be better off keeping a few points under my hat to catch them out at the hearing?

 

I worry that they may attempt to introduce new evidence if they realise how poor their current evidence is.

 

At the moment they seem to believe their position is strong with the current evidence and as such the witness will not be attending and will send an agent in her place.

Hence my earlier question regarding points being raised that were not previously in a witness statement.

ie. FCA reference. Illegible print.

[dx100uk]

you nor they cannot introduce any new evidence on the day.

[AndyOrch]

Am I better showing all my cards now and presenting to the claimant and the court or would I be better off keeping a few points under my hat to catch them out at the hearing?

 

I worry that they may attempt to introduce new evidence if they realise how poor their current evidence is.

 

At the moment they seem to believe their position is strong with the current evidence and as such the witness will not be attending and will send an agent in her place.

Hence my earlier question regarding points being raised that were not previously in a witness statement.

ie. FCA reference. Illegible print.

 

If its not in your statement and evidenced it cant be used or relied on...this may be your last shot so dont hold anything back.

[Miscreant]

OK. Makes sense.

 

So I go for the Witness Statement "as is"

 

I think I may have quoted the wrong section of the Law of Property Act.

Section 74 of the 1925 Act is more appropriate for a company signing rather than an individual.

Either way, the document presented does not satisfy the criteria set out to be a deed.

[Miscreant]

Should all evidence I rely on be exhibited with my witness statement, even if the claimant has also exhibited the same? e.g. NoA, statement?

[AndyOrch]

Yes