Ind Claimform - old HSBC Credit Card Debt - got judgement after only 17 days...

[exasperated]

Hi Andy

 

I have tracked down a copy of my AOS on which I stated I would forward my defence within 28 days as was an option. The form is dated 31/08/2014 but stamped by CCBC the 11th of Sept. As I stated earlier in the thread the judgement came through whilst I was awaiting the reply to my AOS so somewhere it was mislaid.

 

Northampton CCBC said they never received it or had no record of it, but it has a CCBC stamp on it. This was eventually forwarded to me from my local court though they too said they had not seen or received it.

 

I have also received a new witness statement from IND which is below for your perusal:

i don't know whether its relevant but I never asked for a statement of account as stated in point 11. just a compliant CCA if you need to see the actual letter please let me know.

 

WITNESS STATEMENT

1. I [name edited] of P O BOX 1293 PE2 2NU, will state as follows:-

2. I am a legal assistant employed by IND ltd with authority to make this statement

3. I wish to rely upon CPR33.2(1) (a) of the civil evidence act 1995. I would mention I have no personal knowledge of the conduct of the account before the issue of this claim. The documents lodged with the court speak for themselves

4. This statement is is made in extension to the claimants previous witness statement dated ** Oct 2014 and in compliance with order dated ** oct 2014.

5, The claimant notes that the court ordered that:

''2 The claimant has leave to file a further witness statement if so advised arising from the draft defence filed and served by the defendant to be filed and served by 4.00pm on the ** Nov 2014

6. The claimant has now had sight of the defendants draft defence dated ** Oct 2014 copy of which is attached at EVW1

7,Paragraph 1 is noted and denied. The claim form refers to the original debt owner,the account number,the assignment,the pre-action conduct,and the balance due. The claimant notes that the defendant relies on CPR 16.5(3).

(3) a DEFENDANT WHO-

A) Fails to deal with an allegation but

B) Has set out their defence the nature of the case in relation to the issue which that allegation is relevant, shall be be taken to require that allegation to be proved.

The claimant notes that the defendant failed to file a defence to the claim. The claimant notes that the defendant's staement dated ** Oct 2014 is a draft defence.

The claimant states that they have proved their claim in the previous witness statement. The claimant has shown that the defendant has borrowed money how the debt has arisen,assignment, and that the debt is still due and owing.

8, Paragraph 2 is noted. The claimant can confirm that in 2001, the Bank of Scotland merged with the Halifax to form HBOS plc. In January 2009 HBOS plc was aquired by Lloyds TSB. The claimants were assigned the debt by the Bank Of Scotland who had control over the debt. No notice of assignment between the banks was needed as they are part of the same company.

Notice of assignment was sent to the defendant on the 31 ** 2011.(This was attached to the previous witness staement at EVW3 & EVW4. The claimant states that this notice is compliant with the provisions of S136 and the law of property act 136. The claimant considers this served as per provisions contained in CPR 6.26

The law of property act 1925 s136

''LEGAL ASSIGNMENTS OF THINGS IN ACTION.

Any absolute assignment by writing under the hand of the assignor(not purporting to be by the way of charge only)of any debt or other legal thing in action,of which express notice in writing has been given to the debtor,trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action,is effectual in law(subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice:-

a)the legal right to such debt or thing in action

b)all legal and other remedies for the same and

c) the power to give a good discharge for the same without the concurrence of the assignor, provided that,if the debtor, trustee or other person liable in respect of such debt or thing in action has notice

a) that the assignment is disputed by the assignor or any person claiming under him,or

b)of any other opposing or conflicting claims to such debt or thing in action;he may,if he thinks fit,either call upon the persons making claim hitherto to interplead concerning the same or pay the debt or other thing in action into court under provisions of the trustee act,1925.

(2) This section does not affect the provisions of the policies of assurance act 1867

 

(3) The county court has provisions (including power to retrieve payment of money or securities into court)under the proviso the subsection (1) of this section where the amount or value of the debt or thing in action does not exceed £30000

 

The requirements of a legal assignment are as above.The claimant believes that the letter dated ** AUG 20111 complies with the legislation. Section 136 does not specify who must give notice of assignment, so it may come form either the assignee or assignor. The claimant also notes that other than the requirement that it is in writing, there is no prescribed form for the notice of assignment.

 

THE CLAIMANT ALSO NOTES THAT THE LETTER BEFORE ACTION ALSO CONFIRMS TO THE DEFENDANT THAT THE CLAIMANT IS THE OWNER OF THE DEBT

 

9. Paragraph 3 is denied. The original debt owner has confirmed that the agreement was terminated upon the defendants failure to comply with the terms of the agreemnt. The default notice was dated 10 December 2008 and the balance of this was £4,***.00

 

10.Paragraph 4 is denied. The claimant has complied with section iii and vi and annex 8 of the PD pre-action conduct.The claimant states that they sent a letter before action to the defendant. This was addressed to the current residential address. The claimant considers that this letter is deemed served as per the provisions contained in CPR 6.26

The claimant is unsure as to why the defendant refers to CPR 31.14. The claimant has not received a CPR 31.14 request from the defendant

The claimant has previously provided documentary evidence as to the validity of the claim.

 

11. Paragraph 5 is denied as stated in the claimants previous witness statement:

On the ** Jan 2014 the claimant sent the defendant a copy of the agreement and terms and conditions.The defendant wrote to the claimant in letter dated ** JAN 2014 received on ** FEB 2014. He requested copy of the agreement and statement of account pursuant to s77/78 of the consumer credit act 1974. The claimant replied on the ** FEB 2014 to inform that the agreement had been sent on the ** jan 2014 and the statement had been requested from the original debt owner and would be forwarded once the claimant was in receipt. On ** MARCH 2014 the claimant wrote to the defendant to enclose a copy of the assignment notices and statement of account.

 

The claimant did not take any enforcement action whilst the s77/78 request had not been responded to. The claimant states that they have complied with the request. All documents have now been provided.

12. Paragraph 6 is noted

CPR 16.5(4) where the claim includes a money claim a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation

As stated above the claimant states that they have proved their claim in the previous witness statement. The claimant considers that the defendants draft defence has no merit. The claimant has shown that the defendant has borrowed money, how the debt has arisen, assignment, and that the debt is still due and owing.

13. Paragraph 7 is denied. The claimant is unsure as to what bar the defendant refers. The claimant has provided notice of assignment as per the previous witness statement.

14. Paragraph 8 is denied. The claimant would ask that the defendants application be dismissed and the costs of the claimant arranging an agent to attend the hearings be added to the judgement debt.

 

 

 

 

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Edited November 11, 2014 by honeybee13

[AndyOrch]

So the above is in response to your Defence below ? I told you CCBC had the N9 not your local CC:-D

 

Defence

 

 

1) The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2) Paragraph 1 is noted although I am unaware of any Assignment between Bank of Scotlandicon plc (HF) and the claimant nor ever received a Notice of Assignment pursuant to Section 136 of the Law of Property Act 1925 It is admitted that I have in the past had financial dealing with BoS plc (HF)

 

3)Paragraph 2 is denied the claimant has never made any demands for payment on any alleged assigned debt nor served any Notice of Sums in Arrears pursuant to the CCA1974.

 

4)Paragraph 3 is denied The claimant has not complied with sections iii and iv and annex B of the PD pre-action conduct.

 

It is therefore denied with regards to the Defendant owing any monies to the Claimant, which has failed to provide any evidence of assignment/balance/breach of agreement as requested by CPR 31. 14.

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant;

(b) show how the Defendant has reached the amount claimed for; and

© evidence any Default Notice / Notice of Breach or Notice of Sums in Arrears.

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

 

5) Furthermore on xxxxxxxx I made a section 78 request pursuant to the CCA1974 the claimant has failed to comply with this request and is therefore in default and not permitted to request relief or enforcement until such time they can comply with my legal request by virtue of s78(6) of the Act.

 

6) As per Civil Procedureicon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

7) On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974.

 

8) By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[exasperated]

Andy

Very very relieved to have the form, I was within my rights to submit a defence within 28 days wasn't I ?

Thats the draft defence I submitted as per your instructions and is contained within their file;

Thanks

[AndyOrch]

You have the AoS you have proof it was submitted on the 31st and now you have proof that CCBC recieved albeit stamped 11th Nov so they may not be forthcoming were it was for 10 days.

 

Therefore you are entitled to submit the defence as the 28 days had not expired at the time they requested judgment.....I will cross check the above to the defence later but I can state now its 90% guff:wink:

[exasperated]

Haha

Guff a great word to describe that

Thanks for the help here Andy

[exasperated]

Andy

I have kept most of what they sent me and although I appreciate that this may be for the court case I thought it may be worth a mention now:

1)In the defence IND state that the default notice was dated 10th december 2008; I have no record of this default notice but don't know whether that is now relevant but according to the letter below the agreement ended in march 2009.see below

 

2)Halifax sent me a letter in April 2009 stating we entered into the agreement in ** Aug 2004 WHICH IS NOT THE DATE OF THE APPLICATION FORM IND SENT and are relying on in court. I can get a copy of this letter uploaded if you feel its important.

 

 

[AndyOrch]

What is the deadline for submissions Exasp? Have you been given leave to submit anything further?

[exasperated]

I asked the judge he said I could but only the agent is mentioned on the court papers. I would like to Andy as I think it's only fair if they can but you know better than me if that's allowed. In answer to your timescales the sooner the better as I leave to work away again Friday be back Monday next week. The hearing is on the 24th

Thanks Andy

[AndyOrch]

I think it may be prudent to submit a further Witness Statement in response to the above with the inclusion of the new documents and findings.This can be done up to 3 days before the hearing...make sure you serve theirs at the death.

 

I have not had time to review the above as yet but will hopefully have time towards the weekend.

[exasperated]

Ok Andy

I appreciate your knowledge here!!

When you say deliver theirs right at the death do you mean at the court or post it so they receive it right at the death

Also whilst I think on; last time the agent called me into a room and said it was court etiquette to discuss matters before entering the court. Is that true should I do this next time.

Kind regards

[AndyOrch]

Yes the claimant must receive any further WS 3 days clear of the trial date.It is usual for the claimant to approach...I normally advocate you just listen and smile dont advance any information of your intentions.

[exasperated]

Hi Andy

Do I need to send off this further witness statement tomorrow, as that will then give them the three days before the hearing on Monday?

Regards

[AndyOrch]

Apologies exasp ...been chasing my tail last week and not had chance to review were you are...I will have time this evening so we can look at it further then.

 

Regards

 

Andy

[exasperated]

Cheers Andy

I appreciate it and will check back later

Kind regards

[AndyOrch]

Okay supplemental witness statement......lay it out as per a normal witness statement but with the heading Supplemental Witness Statement.

 

 

Have you ever done a WS exasp?

[exasperated]

I havent Andy only the one you dictated to me earleir in the thread

[AndyOrch]

No that's a defence...a WS is like the response from IND you posted on the previous page.

[exasperated]

No, I havent unfortunately.

I have been to court to appeal a CCJ but it was before I joined CAG so I didnt have anything.

Suffice to say I got annihilated off the claimants agent and lost

[exasperated]

Andy do you want me to have a go and post something up for your perusal?

[AndyOrch]

Okay well you have submitted your defence ...they have responded by way of a WS......its a little unfair because they have had the last word.Normally both parties submit a WS as the same time and exchange simultaneously...therefore I think you should submit one to balance the proceedings fairly.

 

I have no intention of advising you to respond to theirs point by point...most of it is irrelevant anyway.However I think you should just submit a short WS of your own words in response generally...with the inclusion of the default error you picked up and also the sale of the debt.

[AndyOrch]

Andy do you want me to have a go and post something up for your perusal?

 

Yes have a go ...look at their WS and your defence at the same time you draft and look at what they state...if you spot any errors list them...I will then tweak it and conclude it with the killer blow.

[exasperated]

Andy

Am I right in presuming that if the Halifax state the agreement started on a different date than the document(application form they forwarded) then this is not a legal document they can rely on?

Here is my attempt..

 

SUPPLIEMENTAL WITNESS STATEMENT

 

 

1. I [name edited] of , will state as follows:-

2. I am a LITIGANT in person

3. I wish to rely upon ….???[B](DO I NEEDTHIS)[/b]NO

4. This statement is is made in response to the Claimants Witness Statement dated ** Oct 2014.

5, The defendant has leave to file a further witness statement in response to the claimants additional witness statement

6. The defendant notes the additional points and the allegations are denied as follows:

7 & 8 noted(SHOULD I PUT NOTED) Yes

 

9. We do not have a copy of the default notice in our file allegedly dated 10th December 2008

 

10.Paragraph 10 is denied, documentary evidence has not been supplied.

 

11. Paragraph 11 is denied the defendant sent a letter requesting a copy of the CCA and In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under theauthority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required.Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it isrendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document(whether or not in the prescribed form and complying with regulations undersection 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary(House of Lords) the highest court in the land. Your attention is drawn to theauthority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul)which confirms that where a document does not contain the required terms underthe Consumer Credit Act 1974 the agreement cannot be enforced. Remove do not quote case law in a WS

 

12. Paragraph 12 Is denied, the claimant has not proved how the debt has arisen as the documents requested from the OC have not been supplied. The date of the agreement as indicated by the Halifax do not correspond with the dated document supplied in the request referred to in paragraph (11).

13. Paragraph 13 is denied notice of assignment was not received.

 

14. In response to paragraph 14, The defendant would ask that the judgement be set aside and the costs of the claimant arranging an agent to attend the hearings be dismissed.

15. The defendant respectfully requests that the court confirms that the claimant has made application to adduce hearsay evidence pursuant to CPR 23 PD 3&4 and CPR 33 PD 2

[AndyOrch]

Few amendments

[AndyOrch]

Okay I have added a further point at 15.....if they haven't then the claim will be struck out.

[exasperated]

Andy

I will have to send this before midday tomorrow to both the local court and IND as I am in work 12-12,

its just paragraph 3 (I wish to rely on....) do I still need this if so what am I relying on?

let me know your happy with it and ill print it off and send it recorded first class to both.

 

 

SUPPLIEMENTALWITNESS STATEMENT

1. I [name edited] of , will state as follows:-

2. I am a LITIGANT in person

3. I wish to rely upon ….???(DO I NEEDTHIS)

4. This statement is is made in extension to the defendants previous witness statement dated ** Oct 2014.

5, The defendant has leave to file a further witness statement in response to the claimants additional witness statement

6. The defendant notes the additional points and the allegations are denied as follows:

 

7 & 8 noted

 

9. We do not have a copy of the default notice in our file allegedly dated 10th December 2008

 

10.Paragraph 10 is denied, documentary evidence has not been supplied.

 

11. Paragraph 11 is denied the defendant sent a letter requesting a copy of the CCA and In response to this request I was supplied a mere application form which did not comply with the requirements of the consumer credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under theauthority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required.Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it isrendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document(whether or not in the prescribed form and complying with regulations undersection 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

12. Paragraph 12 Is denied, the claimant has not proved how the debt has arisen as the documents requested from the OC have not been supplied. The date of the agreement as indicated by the Halifax do not correspond with the dated document supplied in the request referred to in paragraph (11).

 

13. Paragraph 13 is denied notice of assignment was not received.

 

14. In response to paragraph 14, The defendant would ask that the judgement be set aside and the costs of the claimant arranging an agent to attend the hearings be dismissed.