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PRA/? claimform - old Halifax Card 'debt'***Claim Dismissed***

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Dont worry about being too stringent with a witness statement...your okay for a day or so.

 

The balance that should be on the claim form should be the amount at the time of assignment plus court /sol fee ...the account has been terminated and therefore is unlawful if not impossible to add anything to a terminated account.

 

Take a look tomorrow.

 

Andy


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To be honest you have not mentioned very much apart from the documents you intend to rely on...reads like a list rather than a witness statement in your own words.Tell your story...state why the claim is wrong and why the claimants claim should be dismissed...throw a little case law and CCA1974 regs if necessary.

 

Here is one that I drafted for an overdraft.......give you an idea of how you can be persuasive in argument.

 

 

IN THE COUNTY COURT AT HALIFAX CLAIM NO:

 

BETWEEN:

LOWELL PORTFOLIO I LTD Claimant

-and-

XXXXXXXXXXXX Defendant

 

WITNESS STATEMENT OF MR XXXXXX

 

I.Mr XXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1.It is admitted that I have held a current account with Lloyds in the past. The account was opened on or around xxx xxxx 19xx and used to facilitate the payment of my income and expenditure.

 

2.It is denied that I entered into an agreement on the 5th October 1998.It is admitted that I accepted a facility/service offered by Lloyds to be able to overdraw to a limit set and reviewed by Lloyds on the balance of the above current account.

 

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by Lloyds due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair Terms in Consumer Contract Regulations 1999 on this point.

 

4.It is denied that I defaulted on an “ agreement “ an Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which Lloyds failed to comply with.

 

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. If the debt was assigned to the claimant on 24th June 2013 why do they state within their Witness Statement they allegedly served me on the 10th July 2014 (12 months after assignment)?.

 

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136). Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

 

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

Again it is denied any Notice of Assignment was ever received.

 

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

 

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

 

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

It is totally unacceptable to suggest as per the Witness Statement point 12 that documents and T&Cs/statements were sent throughout duration of the account and purely an attempt to avoid its responsibilities in proving its claim or rather they do not hold any proof and not expected to validate their claim legally.

 

7. The claimant’s points at 13 & 14 are either an attempt to mislead the court or a lack of understanding of the CCA1974 legislation. You cannot request by way of a section 77/78/79 for copies of an Overdraft Facility arrangement, hence none was made. The claimant is still liable to disclose a copy of the facility arrangement confirmation and Terms and Conditions from that date pursuant to section 61B of the Consumer Credit Act.

 

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

 

8. Point 16 of the Claimants Witness Statement is irrelevant and nonsensical

 

9. Point 17 again is irrelevant, neither the claimant nor its Witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter and will have to disclose all documentation relied upon as the basis of their claim at trial.As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

 

10. Point 18, it is the witness’s opinion only that my defense is not valid nor has prospect of success. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

 

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out under CPR 3.4 as having no basis.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed ……………….

 

Dated on the day ………………..


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Hi Andy,

I will read through your post in a

min thank you.. I have just rec'd PRA witness statement and can see how Background Info in relation to case is set out .. so think before i read your post already know where your be coming from.

I will get back again as soon as read PRA's witness statement and your kind post.

 

Many thanks as always

 

Hi Andy,

I have read through PRA Witness statement and there are points they have made that are incorrect.

From your kind post I can now see how to set out a Witness Statement properly .. and also reading PRA's shows me what i need to do.

I'll need spend some time today drafting it up correct so can post ideally by tomorrow so Court and claimant receive on Monday, at least then i keep to the rule of the 14 Days before hearing.

 

I be glad tbh when it over one way or another, so much time required to compile all this stuff and trying to do it right.

 

More than appreciate all the very kind help and guidance i have received would never of got this far without the kind help from yourself, dx and the CAG community for sure!

 

Hopefully i can finalise it all today and get posted tomorrow morning, a long day ahead i think :-D

 

many thanks as always

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Its always easier to respond and draft a witness statement when you have the other parties points to guide you and refute as necessary :wink:


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Its always easier to respond and draft a witness statement when you have the other parties points to guide you and refute as necessary :wink:

 

Hi Andy,

Definitely the case :-D

 

Might be all a last minute rush to sort out my Witness Statement, but deffo have the advantage with the aid of their Witness statement now :lol:

 

If i can get finalised and ready to post tomorrow morning i be very happy :-D

 

I have drafted up a new Witness Statement, hopefully on right path now.

 

Any help/advice welcomed

 

Many Thanks

 

I will update again once nigh finalised Witness Statement .. hopefully it's looking more acceptable now!

 

Witness Statement .. Hopefully it's ok .. here it is finalised.

WITNESS STATEMENT - EDIT CAG.pdf

WITNESS STATEMENT - EDIT_CAG.pdf

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Quite good from background onwards Shecles...were I think your failing is the documents referred to.....that is not a priority content of any witness statement...you simply state what you wish to contend and mark it with the appropriate exhibit (document)...so switch it around...start with background after your intro and then put all your docs and references at the end.

 

Example....With regards to the default notice (see exhibit 1a) the original creditor did not allow any days for service and is therefore is invalid pursuant to sec 88 the CCA1974

 

 

Once you have finished the WS and done all your exhibits simply attach them to the back of the WS


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Thank you Andy,

That's gr8 news to hear.. I'm just scanning and printing off 2 x 60 statement pages now as have referenced the payments lol

 

I will re-Up when all finished .. looks gr8 now cleaned up the reference to docs at end of statement :-D

 

Here is the final version of Witness Statement posted today to Court and Claimant.

 

I was pleased the witness statement in the end seemed to cover all the key points, vastly improved on the 1st few drafts that's for sure :roll:

 

I attached all the docs and statements i had referred to .. all were easy to reference and read from the Indexing i gave them, was easy to see the points i had referenced in the witness statement.

 

I am hopeful it presents a decent list of proven facts, and just await the hearing itself now.

 

All the original docs i have now bundled up in the order as were listed in the witness statement, and are ready for me to take to Court for the hearing, so all set for early Jan 2017 :-D

 

Thanks to all .. for all the very kind Input that has helped me prepare this, especially Andy and dx who have been more than a helping hand for me to get to this point :yo:

 

Only thing now, i got to do it all again .... another case to prepare for now for mid Jan 2017.. i will be updating the post on that case soon lol

 

At least now i got an insight on how should be done :whoo:

 

Many many thanks :thumb:

WITNESS STATEMENT_EDIT_CAG.pdf

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:thumb:

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Thanks Andy,

 

Not too bad i didn't think .. the scanning of all the statements took me some time late last night .. was surprised was so many that contained relevant points to reference lol

 

Quite a bundle went off in both C4 Envelopes to Claimant and Court :-D

 

I see Claimant can still withdraw claim up to 7 days before the actual hearing and get full refund of Fees back .. i wonder how many do that once read a Defendants Witness statement they consider strong defence ?

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I personally dont think they give any regard to what ever defence is submitted....DCAs do not expect defences to be submitted or the claims to be challenged...so once a defence is submitted the claim will start to cost them...strangely it at this stage that they appear to lose interest and move onto the next gullible cash cow.

 

You must appreciate that the claims are filled on mass bulk so if they were all to be defended their infracture would simply collapse as it would be impossible to litigate all the claims..therefore they cherry pick the lucrative ones....but not if they are in the Fast Track :wink:


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Happy New Year!

 

UPDATE:

 

Hearing takes place tomorrow for this case, i will update again tomorrow with result :thumb:

 

Its been a long road getting to this point but glad nigh there, i would never of got this far without the very kind help of the CAG community.. that's for sure!

 

The very kind help received from all especially all the help from Dx and Andy has got me to this point in time!

 

Hopefully tomorrow i will do myself Justice and present a decent case.

 

I will update you with the result tomorrow :thumb:

 

Many thanks and wishing you all a Healthy Prosperous New Year !!!

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Best of luck for tomorrow Sheckles.

 

Andy


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Absolutely fantastic news:whoo:

 

I won my case based on one Key Fact alone ...the Defective Default Notice which had not allowed any days of service,

the Judge also stated no right of appeal for the claimant to decision :whoo:

 

The Judge citied a High Court Appeal Case where a Judge had made a decision on a very similar case to mine which was based on a defective Default Notice with no days of service allowed for.

 

The claimant asked to adjourn the case based on the fact he did not have my original copy of the Default Notice in his possession, but Judge adamantly refused :whoo:

 

The Barrister representing them arrived without my Witness Statement,

and had no Copy of the defect Default Notice in their own Witness Statement, just a screen shot with some details they had sent one, I proofed they had received my witness Statement as had used Royal Mail Next Day Delivery Signed for £8.55 Service :-D

 

I cannot express my gratitude to all you guys for all your more than kind help which provided me the confidence to go to Court!!!

 

I have one more hearing to go in couple weeks for another case, hopefully I may get more good news come that day as seem to have an equally as strong case with that.

 

I should be in a better position soon to make a contribution to CAG to show my appreciation and this i will make a definate priority soon:-D

 

Many many thanks especially to dx and Andy

Lots of good work went into helping me prepare a decent Witness Statement and guide me from beginning to end, i will be forever grateful.

 

Without the CAG community i would never ever of got this far .. let alone win my case, many many thanks to all those that had points to make, they were all taken on-board and very much appreciated for sure.

 

Thank you all .. the CAG community is awesome :whoo:

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Fantastic news, what a great way to start the new year! :thumb:


Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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Absolutely over the moon here Bazooka :whoo:

 

It just goes to show when i started this thread i was sure because my signature was on an application form it constituted a credit agreement, but being asked to upload all docs and then being told they were bog-roll astounded me when told.

 

Dx and andy i will never be able to repay their help, all was bang on to the letter so to speak!!

 

Everyone's Input and myself reading many many threads as dx advised .. helped me to understand why there was good reason to contest and how to :thumb:

 

Without CAG i would never of had the confidence to defend claim and felt on many occasions maybe easier for me to make monthly token payments to claimant .. so glad i held out :whoo:

One point i would like to make,

the Royal mail service i paid for Next Day Delivery with signature on delivery proofed priceless, the Judge looked at my receipt and looked at the proof of Signature and date and time received by claimant

 

 

and aswell as slated the claimant for not bringing to Court my Witness Statement stated you can not contest defendent served as i have seen proof of delivery .. i paid £8.55 for that Witness Statement as was quite a bundle, but proved worth every penny :thumb:

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and there are people stating a faulty DN cant win you a case.....

mercy thats bad advice....


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Hi dx,

I can confirm it was the faulty DN that deffo won the day :whoo:

Your advice and Andys were perfection :-D

 

Absolutely over the moon, 1 case to go in 2 weeks and in that 1 NO DN was ever issued :thumb:

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Well done Sheckles as anticipated...thread title amended to reflect the outcome.

 

Regards

 

Andy


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Hi Andy,

 

Many many thanks can't thank you guys enough,

 

All the very kind help from the CAG community was what got me over the line, especially yours and Dx prompt responses and all the time you kindly both spent looking over my many docs and correcting, pointing, guiding in the right direction.

You guys spent so much time explaining all so much to me along the way :thumb:

 

I remember when i read my 1st threads on the CAG forum and thought no way will i see this through to the end .. so much to absorb as a noob.

 

You guys installed confidence from the off and this was the main factor I believed I could stand strong and defend against claim at Court.

 

I hope anyone that reads this thread, it may install some confidence to stand strong and belief it may be all worthwhile.

 

Many many many thanks .. CAG is 1 awesome community :whoo:

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Just a question for some clarity for my own mind

 

Were the agreements pre or post 2007?

 

Was your argument about retcons to do with the CCA request or about the execution of the agreement


Any opinion I give is from personal experience .

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That's worrying what the judges accepted regarding CCA pre 2007. Judge satisfied an agreement existed?

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By the sounds of it though the judge did not rule on the enforceability of the agreement but did on the bad DN.

Other judges have ruled that a DN is deemed served on the day it was posted,

 

What matters in the end is that the claim failed


Any opinion I give is from personal experience .

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Yes but if the DN was accepted for the claimant then the CCA enforceability would have also been in favour of the claimant so much for the you notion that for pre 2007 agreements you need the original agreement signed etc when certain judges to be honest flout the law. Judge lottery it's down to luck what judge you get on how day

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Just a question for some clarity for my own mind

 

Were the agreements pre or post 2007?

 

Was your argument about retcons to do with the CCA request or about the execution of the agreement

 

the agreements were 2001 and 2000,

 

I went to Court to contest the agreements and the DN,

 

But early on into both my hearings with both cases .

. both Judges ruled .

. in all possibility an agreement existed as i had been paying for many years,

i asked how can the documents that do not contain the prescribed terms be valid?

 

The judge stated regardless there was no signature of mine in 1 of my cases, the reconstituted versions stood,

when i queried but there are 2 different versions supplied so how can both be genuine?

 

Because the 2007 revised terms are version 2 are also allowed,

I said i could not possibly understand how that at all is fair as i had never ever signed any of them documents, hence why my signature was not present in 1 of my cases,

 

 

the other case i had signed but there were many points of contention in relation as far as i had thought to the prescribed terms,

 

 

but in both my cases in all honesty i knew i held the ace card with the Default notices

.. and so proved thankfully for me.

 

I must admit especially where the T&C's contained no signature i was shocked at Judges answer,

as far as i saw it .. they could provide anything with my name and address typed on it and it was acceptable,

 

 

i did contest as i say,

but Judge was adamant the T&C's were allowed and Judged in all possibility an agreement would have existed in both cases.

 

where the DNs were concerned ..

the Judge allowed no margin for error,

 

 

and as i said .. I won 1 case on NO DAYS OF SERVICE ON THE DEFAULT NOTICE

.. which may i also add the claimant arrived at Court without my witness statement,

could that be because my defective DN was in that witness statement i wonder???

 

and the other case ..

NO DEFAULT NOTICE WAS EVER ISSUED,

and because of how in order my witness statement was with proof of delivery on everything i sent to claimant

Judge said it was poor on claimants behalf they did not have the document i had provided to them, and stated it was def received at your offices and

 

 

then read the law on Default Notices out, and stated there was no margin for error, there was error so dismissed case.

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