MBNA court Activ Kapital

[shamrocker]

Can anyone point to a witness statement used in a similar case to mine, that I can use as a starting point? I'm going to get my head down on this later tonight so it would save me trawling the forum looking and reading up.

 

Any help would be most appreciated.

 

The Mould - sorry if you've already started giving this some thought, I'm just trying to get ahead of myself and am trying to make sure I can be as productive as possible when I begin working on it. It's easy to feel like you're being ignored or forgotten about from behind the computer screen...when that often isn't the case, but sometimes it is

 

Sham

[The Mould]

Can anyone point to a witness statement used in a similar case to mine, that I can use as a starting point? I'm going to get my head down on this later tonight so it would save me trawling the forum looking and reading up.

 

Any help would be most appreciated.

 

The Mould - sorry if you've already started giving this some thought, I'm just trying to get ahead of myself and am trying to make sure I can be as productive as possible when I begin working on it. It's easy to feel like you're being ignored or forgotten about from behind the computer screen...when that often isn't the case, but sometimes it is

 

Sham

Urm, no, sorry Sham, I haven’t given any thought as regards your WS for the trial. I simply do not have the time (and I have serious health issues and two young children to contend with), however, I have provided substantive assistance to you to include a proper valid Defence against the claim.

You should take note that, until I posted on your thread, you had not received any such proper or indeed any practical assistance with this matter.

I wish you the very best with this matter and I shall have a look out on these moors from time to time to see how it has all turned out for you.

Godzilla

Kind regards

The Mould

[shamrocker]

Urm, no, sorry Sham, I haven’t given any thought as regards your WS for the trial. I simply do not have the time (and I have serious health issues and two young children to contend with), however, I have provided substantive assistance to you to include a proper valid Defence against the claim.

You should take note that, until I posted on your thread, you had not received any such proper or indeed any practical assistance with this matter.

I wish you the very best with this matter and I shall have a look out on these moors from time to time to see how it has all turned out for you.

Godzilla

Kind regards

The Mould

 

Thanks TM! I greatly appreciate the help you have offered me so far. If you hadn't assisted me this week I'd most likely have been stuffed by now. I'm sorry to hear of your health issues - that makes it all the more impressive that you give up your time and experience to help out on here. And kids.....I know all about them!

 

I suppose what I was trying to establish was if I needed to crack on with this myself - which often becomes a ends in deep confusion. I'll get my head into it later when the house goes quiet and will try to draft something up. If you were able and willing to give it the thumbs up or down when I post it up it would be of great help, once again.

 

Thanks again. I'll be forever grateful.

 

Sham

[shamrocker]

Just a couple of quick questions about writing a witness statement, if anyone can help -

 

Should I give any account history within the WS? Is this relevant, or do I merely refer to my attempts to have a copy of the agreement provided by the claimant and their failure to provide this agreement in satisfactory form? (i.e. the claimant requests to enforce an agreement pre-dating 2007, etc)

[AndyOrch]

Your WS for trial should run in conjunction with the contents of your defence.......more particularised and in your own words...so yes ... "on receipt of the claim I requested a copy of the agreement by way of a section section 78 request dated xxxxx and received by the claimant xxxxxxx.The claimant response was disclose a very poor microfiche copy of the agreement which is barley legible and therefore pursuant to the CCA1974 is unenforcible."

 

Regards

 

Andy

[shamrocker]

Your WS for trial should run in conjunction with the contents of your defence.......more particularised and in your own words...so yes ... "on receipt of the claim I requested a copy of the agreement by way of a section section 78 request dated xxxxx and received by the claimant xxxxxxx.The claimant response was disclose a very poor microfiche copy of the agreement which is barley legible and therefore pursuant to the CCA1974 is unenforcible."

 

Regards

 

Andy

 

Ah, ok thanks Andy. In actual fact, I did not have sight of the agreement until I received their disclosure pack - i.e. about 7 months after I sent the CCA request, which was acknowledged.

[shamrocker]

It really was common sense though, why take risks, what i mean is, if i were the Claimant, i would have simply asked a secretary to hand type the documents up and that way there simply would not have been any issue over legibility. In fact the Judge made that exact point but it seemed to fall on deaf ears.

 

Thanks for this Andy.

 

On the point quoted above, does this mean that the court would accept a freshly re-typed copy of the agreement? (obviously unsigned) ...or have I misunderstood?

[AndyOrch]

They shouldn't if its pre 2007 but as you have just seen on freemasons thread...anything is acceptable it would appear...subject to an experienced DJ.

[shamrocker]

Ok, fair point Andy.

 

One other question if I may - now that I've reached this stage, what COULD be the possible implications with regards to costs if I push ahead to trial, compared to conceding prior to trial.

 

I need to carefully weigh up how this could turn out if I end up in a scenario like freemason did.

[Ganymede]

Is this a fast track claim?

[shamrocker]

Is this a fast track claim?

 

Yes, that's correct.

[AndyOrch]

Costs are a risk in Fast Track

[shamrocker]

Costs are a risk in Fast Track

 

I just wondered if there would be much difference in costs in ceasing the defence now, compared with seeing it through and possibly losing at trial. I'm just weighing up my options, although I believe it makes sense to at least submit the WS at this stage and see what develops from there.

 

On a different matter - I am just reading through this case - http://www.bailii.org/ew/cases/Misc/2012/19.html (HFO Capital Limited v Roland Wegmuller). It seems quite useful. Is it a case you're familiar with and would I be moving along the right lines with using much of it to shape my own defence?

[AndyOrch]

Shamrocker ...just try to concentrate on the SJ application for now......if you lose the rest is irrelevant...if you are successful then the arguments you have put forward are deemed acceptable by the DJ and therefore worth pursuing IMHO.

 

Yes I am familiar with the above case and would serve you well to refer to it should this proceed to trail.

 

Regards

 

Andy

[shamrocker]

Thanks Andy. This is what I'm like when I start reading up on things, sometimes moving from source to source and then forgetting where I started! Sometimes looking for things that aren't there...if that makes sense.

 

I need to get this WS sorted by tomorrow afternoon so that I can get it posted and in on time. In your opinion, need the WS be lenthy and should I have any exhibits at this stage? I'll obviously include my request(s) for copy of the agreement and then proceed along the lines you suggested in your initial post tonight. It's puzzling me because I'm unfamiliar with the process. I'm sure I'll be better next time though! :-|

 

Maybe it's best that I just dive in and post it up tomorrow. Perhaps you could offer any pointers then?

 

Thanks for your help!

[AndyOrch]

Your WS in support of your defence should be in greater detail (subject to the arguments of your defence) than that in response to their application for SJ...very similar though so you could adapt it quite easily to suit.

 

You would use the same exhibits as the SJ/WS

[shamrocker]

Your WS in support of your defence should be in greater detail (subject to the arguments of your defence) than that in response to their application for SJ...very similar though so you could adapt it quite easily to suit.

 

You would use the same exhibits as the SJ/WS

 

Ok, I think I get it now.

 

Just one final point - I don't know if you noticed my comments about the SJ/WS above - it wasn't perfect due to me misunderstanding the various advice given on the forum and then I ran out of time. Nevertheless, I believe that any reasonable Judge will accept the argument put forward (I hope).

 

The Mould suggested that I put in copies of the case law as exhibits, given that I referenced them in my SJ objection. He very kindly provided the links to the documents. The first one was 19 pages long and at this point I realised I'd never get them all printed off and organised in time to get to the last post.

 

The question - do I copy the whole of those articles and include them as exhibits, or are the relevant snippets sufficient? I understand the whole document may be necessary in order to provide proper context, but there's an awful lot of pages involved.

 

Thanks again!

[AndyOrch]

Just the parts relied upon.....the DJ will be aware if you quote the case and date...you can have the full case files for the hearing.

[shamrocker]

Just the parts relied upon.....the DJ will be aware if you quote the case and date...you can have the full case files for the hearing.

 

Ok, great. Many thanks!

 

Sham

[shamrocker]

Sorry Andy....back again...

 

This is my defence - should I contest each point in turn, bearing in mind they've provided a copy of the DN, NOA and statements in their literature? Do I mention whether I had a crefit facility with the original creditor or not?

 

Sorry, I'm just coming up with more questions than answers at the moment.

 

"1. Paragraph 1 is neither admitted nor denied with regards to the Defendant

entering in to an agreement referred to in the Particulars of

Claim ('the Agreement') with MBNA.

 

2. Paragraph 1 is neither admitted nor denied with regards to 'the defendant

defaulting' on the Agreement with MBNA.

 

3. It is denied with regards to the Defendant owing any monies to or that

the claimant/original creditor served a valid Notice of Assignment. The

Claimant is put to strict proof to:

 

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

Claimant, and

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

© show how the Claimant has the legal right, either under

statute or equity to issue a claim.

 

4. As per Civil Procedureicon Rule 16.5(4), it is expected that

the Claimant prove the allegation that the money is owed.

 

5. On the alternative, if 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.

 

6. By reason of the facts and matters set out above, it is denied

that the Claimant is entitled to the relief claimed or any relief."

[shamrocker]

Furthermore Andy, is it ok to refer to the Claimant's WS and documented evidence within my own WS for the trial?

 

I may be going off on a tangent with this, but I'll give it a shot and fingers crossed you will have a minute or two to spare in the morning to offer some pointers.

 

Many thanks,

 

Sham

[shamrocker]

I'm currently preparing this witness statement for trial, ready to send off today. My primary focus is on the CCA being improperly executed. Need I contest the DN or NOA? Both seem sound to me and to dispute them would be trivial and possibly appear desperate. I've seen some reference to claims on here about these documents not being delivered by recorded mail, etc...therefore, can't be considered properly served. Others have said they don't need to sent recorded.

 

I thought it was worth the effort to ask on here before I send this WS off later today.

[citizenB]

NoA and DNs do not have to be sent by recorded delivery. If you genuinely didnt receive them - then say so.

 

If the DN has not provided for the statutory 14 days (with allowance for postage) then that is a valid argument.

 

Have you been receiving the statutory Notice of Arrears documents that are supposed to be sent out at least once a year since October 2008 ?

 

And yes, you can refer to to the Claimant's WS in your own.

[shamrocker]

NoA and DNs do not have to be sent by recorded delivery. If you genuinely didnt receive them - then say so.

 

If the DN has not provided for the statutory 14 days (with allowance for postage) then that is a valid argument.

 

Have you been receiving the statutory Notice of Arrears documents that are supposed to be sent out at least once a year since October 2008 ?

 

And yes, you can refer to to the Claimant's WS in your own.

 

Hi CitizenB - thanks for popping in.

 

The DN is sound, according to The Mould. So, there's little point in pursuing that. I cannot recollect receiving either document, but those they have supplied at disclosure seem ok. I feel that a Judge would take their side on that, hence I haven't given it much thought and concentrated on the CCA itself.

 

Do you think I am losing anything from not mentioning non-receipt of those documents?

 

I haven't received any notices of arrears. Where might they fit into my arguments?

[The Mould]

“The judge said that the original agreement must have been readable and only through the degradation of copying did the copy now appear illegible”.

The above quote is reproduced from freemasons’ case/thread.

Counter –argument against the above said contention

Copying of original documents is not an invasive method of reproducing an identical copy of the original document that would cause that original document or the material set out therein to deteriorate, therefore, the DJ’s contention on this point in the freemason case is wholly factually incorrect and unfounded.

Forensic document examiners subject original documents to stringent non-invasive examination methods and these examinations do not cause any damage to the original document or to the material set out therein.

Copying of original documents, no matter how many times they are copied, do not cause the original document to break down or deteriorate chemically to a less readily convertible form. Original documents that are not handled with care or not stored in proper containers or files, will undoubtedly deteriorate over time, unless the original document is on parchment, but copying does not cause any such damage.

And you would also put the creditor and indeed the DJ, respectfully that is, to the strictest proof to the contrary.

Kind regards

The Mould