Arrow/Shoosmiths re old MBNA c/card account..Claim 2

[snowdog]

..

SJ docs.pdf

[AndyOrch]

Have you received anything from the court itself regarding their application for Summary Judgment.....notification of hearing date ?

 

 

Andy

[snowdog]

Hi Andy, nothing regarding a hearing date yet, just today received a copy of above papers from the Middlesbrough court.

Thanks

[AndyOrch]

Start working on a witness statement in response with objection with reason.

 

When you have the hearing date you must submit your statement not less than 7 days pre hearing and serve a copy on the claimants Sol.

 

 

Andy

[snowdog]

Thanks Andy. What sort of lines should my witness statement take. What are my possible grounds for objection?

Are there any examples that I could follow as I’m not the greatest at the legal stuff?

Thanks

[dx100uk]

Yes use our search cag box top red toolbar

 

Witness statement card

[AndyOrch]

Better to search Summary Judgment witness statement...its different to a normal witness statement to a claim.

[snowdog]

Thank you Andy, I’ll have a look about.

I have a couple of 14 hour night shifts to grind through zzz

[dx100uk]

sorted PDF in post 26

rotated sev pages and removed your name from page 21

 

that DN is from idem...bogroll

they cant issue a DN only MBNA can

[snowdog]

Thank you for sorting pdf dx, I tried my best and thought that I’d hidden everything doh!

Could Idem be trying to issue DN on the basis that they received one ‘payment’ of £50 from me - because if so, that was actually my last payment to mbna which they transferred themselves to Idem in Nov 2012?

[dx100uk]

a debt buyer cannot issue a DN

 

only the original creditor can.

 

usual trick from them.

 

dx

[snowdog]

So can I use this in my defence witness statement? Surely the court would know this too?

[dx100uk]

Summary Judgment witness statement

 

no the court wont know if not pointed too.

[shamrocker]

One of the first summary judgement related posts I stumbled across, but seems like a good place to start. There will be more up to dates ones, no doubt where Andy offers specific advice. This will get you started though.

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?244926-Different-Agreement-Turned-Up-Following-CPR-Request-Urgent-WS-Needed-!

 

An illegible copy of the original agreement isn't going to cop it, if you know how to exploit the weaknesses in it as a foundation to their claim.

 

Sham

[snowdog]

Hearing date has been set for 8/03/19 so I need to get my witness statement in pronto.

 

I've been searching CAG for Summary judgement witness statement but I can't seem to find anything appropriate to work off and I'm not even sure which points I should be objecting to.

 

Is the default notice from Idem and not from MBNA the only objection I can make here?

I'm not the best at these things and I'm going to struggle I fear.

[AndyOrch]

Example of WS in response to Strike out/SJ...adapt to suit your circumstances.

 

"IN THE ******* county court

Claim No. ***********

 

BETWEEN:

Claimant

Capquest/Drydens

 

 

AND

Defendant

************

 

_________________________ ________

 

WITNESS STATEMENT OF Mr **********

_________________________ ________

 

 

 

I Mr ******, being the Defendant in this case will state as follows; I make this Witness Statement in objection and to oppose the claimant application for Strike Out/Summary Judgment in view of my defence submitted to the claim dated xxxxxx pursuant to CPR 24.5 (1) a/b.

 

I will respond to each paragraph of the same numbered as in the claimant’s statement.

 

Paragraphs 1/2/3

 

 

1. The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

 

2. It is my understanding that the claimant is an Assignee, a buyer of defunct disputed or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed ...10p to 15p in the £1 and which the original creditors have already wrote off as a capital loss and claimed against taxable income. They then issue claims to circumvent and claim the full amount of debt to maximise profit.

 

3. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

Background

 

4. It is admitted that I have had financial dealings with Lloyds Banking Group namely Halifax in the past but on receipt of this claim I was unsure of the agreement and any alleged balance or ever been contacted by Lloyds Banking in connection with any outstanding debt.

 

5. The claimants issued this claim through MCOL Northampton on or around 12th February 2015 to which I submitted my defence and the claim has remained stayed for over 3 years. The claimants made application dated 26th March 2018.

 

6. Paragraph 4. The claimant claims that the agreement was entered into on the 18th February 2006.On receipt of this claim I requested by way of a section 78 request dated xxxxxx a copy of the agreement and Terms and Conditions and statement. The claimant never responded and the claim was stayed.

 

The claimant’s exhibit marked pages 1-9 GD1 is not a copy of the agreement but a summary transferred from the application as stated in the exhibit itself. It is deficient of the prescribed terms pursuant to the CCA1974 and therefore not legally enforceable pursuant to section 127.1 section 65(1) (improperly executed agreements)

 

7.Paragraphs 5 confirms that last payment received to the account was dated 22nd June 2009.Given the claim was issued 12th February 2015 it could be assumed the issuance of the claim was to stop it from becoming statute barred within another 4 months and then the claim left stayed for over 3 years.

 

8. Paragraph 6 of the claimant’s statement confirms that they do not hold a copy of the Default Notice and wish to rely on a template version and screen shot confirming the date it was allegedly issued. I will contend that this is neither sufficient nor pursuant to sections 87 and 88 of the CCA1974 and does not confirm service. The claimant is put to strict proof to validate the authenticity and source of the screen shot…the template Default Notice is irrelevant nor proof that one was ever served.

 

9. Paragraph 7 is noted but not accepted. It is denied that I was ever served a Notice of Assignment pursuant to sec136 of the LoP and will contend that the exhibit marked 65 GD1 is a further mocked up template. The assignment must be in writing and signed under hand by the assignor.

 

10. Paragraph 8 is denied. I was not aware of any assignment nor ever requested to make payments. I can only assume the claim was issued as stated previously to stop the limitations as it was approaching 6 years.

 

11. Paragraph 9 simply confirms my Defence which puts the claimant to strict proof. I will contend that after a period of 3 years of the claim being stayed it is disappointing that the claimant can only disclose templates and cut and pastes and screen shots that have no legal valid connection to any agreement.

 

12. Paragraph 10 - 12 are noted but irrelevant if a valid copy of the agreement/default notice cannot be disclosed on which the claimant claim relies upon.

 

13. Paragraphs 13 – 15 is conformation by the Claimant’s Solicitors of my Section 78 and CPR 31.14 request and the claimant failure to comply.

 

14. Paragraphs 16 is denied I am not aware of any letters pre litigation from the claimant and again I would suggest that they are a form of template with dates added to pad out the claimants bundle.

 

15. Paragraph 17 the claimant confirms it let the claim stay for over 3 years as it couldn’t disclose any valid paperwork to support its claim. It is my submission they still can’t and are circumventing the requirements set out under the Credit Consumer Act 1974.

 

16. Paragraph 18 is denied. It is the claimants own opinion and hear say that any debt is now properly due and yet they fail to comply with Consumer Legislation to entitle any relief.

 

Summary

 

17. Therefore paragraphs 19 – 20 I respectfully request the court dismiss this application for Strike Out of my defence /Summary judgment, that there are compelling reasons as to why this claim should be disposed at trail and put the claimant to further strict proof to disclose the requested documents on which their claim relies upon.

 

Should the claimant fail to comply 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 this day ………………..2019

[snowdog]

Thanks very much for your help and prompt response Andy, I've been struggling with 14 hour shifts recently zzz.

 

I've based my statement loosely on the one above and obviously adapted it to suit.

When I finally found time to go through their 80 pages of documentation, I found a few errors on dates and amounts so I highlighted these in my statement.

 

I'm happy with it but would have liked one of you guys to cast an expert eye over it first, but I need to get it off tomorrow and as it's almost 3am now I've had to take a chance.

 

I've of course sent it to the court and sent a copy to the claimant.

 

Will I hear something back in writing from someone before the hearing date of 08/03/19 and if not, do I just go to the hearing anyway?

Not at all sure how these things work, but I'm a lot more knowledgeable thanks to this site!

 

Many thanks once again.

[AndyOrch]

No you wont hear anything else...simply attend the hearing on that date time...armed with your documentation claim /defence /statement/claimants application and any exhibits relied upon...

 

I would post a copy of your statement here for future reference (in PDF format only members can view)

 

Best of luck

 

Andy

 

CAG will be CLOSED due to a major upgrade from 14:30PM Tuesday 26th 2019 for at least 48hrs . The Forum will be available in read only status during this process

[Neal267]

Good luck for Friday - Would love to know how you get on

[AndyOrch]

Yes .....best of luck SD and please update this thread with a conclusion....good or bad.

Regards

Andy

[Orchid47]

Would love to know what the outcome was? 

[snowdog]

Hello again, I'll update you with the outcome of Friday's hearing and a little scenario for anyone who has to go through the same type of situation.

 

I arrived for the hearing with copies of all relevant documentation, witness statements etc.

On arrival at the designated hearing room reception, an advocate representing the claimant, Arrow Global, introduced himself to me and asked if there was anything that I needed help with or wanted to ask before the hearing commenced. He explained what would happen in the hearing with the judge. As he was working for the claimant, I said very little other than to say I appreciated the offer and advice.

 

We were called to the hearing room and the Judge said he had read both witness statements and gave us both the opportunity to comment. The claimant then covered the points basically covered in their witness statement. I then did the same, pointing out my objections and the reasons (no default notice from original creditor, illegible terms and conditions, delay in claimants administration etc).

 

The judge then made a statement to say that he very much disliked the way large financial organisations sold off these debts at reduced costs simply because they couldn't be bothered to administer them  themselves and that he would like nothing more than to kick all these type of claims out as it wasted a great deal of court time - HOWEVER, because there was a signed agreement, even with barely legible terms and all necessary paperwork including letters of assignment and default notice showing my address (which I have lived at for 30 years), he decided that the claimant does have a valid claim and that I would have no reasonable chance of winning at trial.

 

I then asked if I could comment further and he agreed. I stated that had MBNA not sold the debt and my agreed reduced payments which I was still making to them at the time of assignment had been continued, the debt would have been paid in full within 2-3 years. I also stated that because the default notice was not issued from the original creditor (MBNA), I was of the opinion that this was not legally binding and that I would have a chance of succeeding at trial. The Judge seemed a little startled by this and said 'Actually, I believe that you may have a valid point here and proceeded to check whichever CPR or whatever rule applied on his computer. At the same time, the claimant's advocate started frantically searching on his tablet for the relevant information.

 

After a few minutes, the claimant's advocate pointed the Judge in the direction of a rule on default notices (unfortunately, I do not remember the applicable reference number) which stated that a default notice could be issued by the original creditor, or anyone who subsequently purchased or was assigned the debt.

 

After checking this himself, the Judge then stated that in light of this, his original decision would stand and awarded in favour of the claimant. The claimant requested the original debt amount plus costs amounting to around £500. The judge stated that he would not award full costs as, had this gone through the small claims procedure, the costs would have been much less. He did however award the court and solicitor costs of around £225 to the claimant.

 

So, it has been an experience, a very stressful one, but without the help of some great people here, I would have had no clue. With hindsight, I would have been better to make an offer to the claimant and would have most likely ended paying much less.

 

My final question and request for advice is, would I be better paying the amount in full within the 28 days if I am able, to avoid a judgement against me which would stay on my file for six years, or should I pay the £50 monthly for 3 years as suggested by the judge and accepted by the claimant's representative? I doubt whether the claimant would accept an offer of a reduced full and final settlement having won the case.

 

I hope this update has proved useful and helpful.

Thanks.

Edited March 10, 2019 by snowdog

[Orchid47]

Im confused Snowdog as to why there is still a chance of Judgement being awarded against you even though they agreed a £50 repayment schedule?

[AndyOrch]

Many thanks for the conclusion SD....regrettably the claim went against you....although Im not really convinced it should have with regards to  points made re Default Notice. 

 

87 Need for default notice.

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

 

What account number was on the Default Notice issued by IDEM...the original MBNA number or IDEM new account number ?

 

As for your final question it really depends on how you feel about having a CCJ on your files for  6 years...if important then pay in full if not bothered then pay monthly

 

Andy

[snowdog]

Thanks for the response Andy,

 

The default notice from IDEM showed the IDEM new account number only. This new IDEM number was also on the letter of assignment from MBNA which showed both account numbers and this was produced in the claim by ARROW and included in their witness statement.

 

The Judge showed that the relevant Need for default notice ruling stated that it could be issued by the original creditor or by the subsequent purchaser/assignee of the debt (after being pointed towards it by the Arrow representative in the hearing)

 

I have not been able to find the relevant information about this online myself since, but I also did not have the knowledge or tools at the time to argue the point with 'the experts'. If you can find the ruling, I'd be interested to read it (albeit too late now)

 

** One further important question if I may please Andy - 

If you recall, this was one of two claims against me made by Arrow, both for old MBNA cards assigned to IDEM then eventually ending up at ARROW.

I defended them both in the same way through MCOL in summer of 2016 and to date, I haven't had a hearing date about the other claim.

 

Now that they have won this one, are they likely to bring the other one to court in the same manner?

If so, I'm wondering if I might be better to contact ARROW before this happens to make an offer of settlement before I have to pay further costs.

 

The other claim is at https://www.consumeractiongroup.co.uk/topic/396124-arrowshoosmiths-re-old-mbna-ccard-accountclaim-1/

 

 

Thanks again