Arrows/Shoos claimform - old M+S Credit Card debt

[AA99]

I found your post no.41 in this thread.  Is this what I should be submitting? 

 

 

[AndyOrch]

Yes you will have to adapt to fit your circumstances

[AA99]

Thanks.  I thought I'd read that I file this when I received something else from the court.

 

I can't believe I only get 1 day to prepare this!  Also my diabetic son has a specialist appointment on that day and time that I'm meant to get him to!!!!

 

I also thought I had a MCOL for this one.  What will have happened to that now?

[AA99]

On 01/02/2019 at 18:55, dx100uk said:

exhibits in post 90

shame the default notice is a copy of a template

no dice arrows..

now let me think

who tried that before and lost...urm…...

I have been reading all day and just getting more and more confused  .  Am I relying solely on no DN?  If so, what regulation does that come under?  

[dx100uk]

Section 87 cca

Try searching "default notice is a template" inc quote marks

Back later

 

[AA99]

Thanks dx, will do.  In the meantime, I don't know where to start with that Witness Statement.  Am I replying to Shoos' covering letter that came with their first bundle, like following their indentation (?!) and numbering?  I have had 3 bundles now........

Edited March 10, 2019 by AA99

[AA99]

That search took me to this thread and I quote from post 60 :

The default notice is a template blank copy of what the original would have looked like.....its not a requirement to retain hard copies of this notice although most creditors are now doing so....therefore as their data shows a DN was issued, most courts would accept that as credible evidence....you takes your chance dependent on the Judge you get.

 

 

Quote

 

 

[dx100uk]

is there proof here from the claimant that a DN WAS issued other than a template of what one might have looked like?

ie from the OC's system or account log?

 

 

[AA99]

I have now received 3 bundles, but all DN's are templates only.

[dx100uk]

And in their ws point 14 they fudge they dont need a real copy and they have never stated when the account was defaulted and you sadly in your defence made no ref to the default notice

[AA99]

Is it too late now to put this in my statement, how the heck do I get that in by tomorrow?!  Can't believe I've been given 1 day to submit this?!

[dx100uk]

well you could note the dates in your ws

andy has given you an example so you should be well on your way with that to adapt

 

[AA99]

Please can you clarify 1 more thing for me?  The N244A states:

 

1.  At least three clear working days before the hearing, the applicant shall file with the court and serve the other parties with any skeleton argument in respect of the Application.  The respondent to the application may also file and serve a skeleton argument in reply, and, if so, this should reach the court at least 24 hours before the hearing.

 

Can I not just submit a skeleton argument today?

[AndyOrch]

Hi

 

At the start of your witness statement you simply add to your intro that this statement is submitted and  in response to the claimants application dated xxxxx and the the Courts Notice of hearing dated xxxxxx which was only received on xxxxx allowing very little Notice to finalise.It is respectfully requested that the court makes allowance given that Notice was provided so late by the the court.

 

Witness statement is far better than a skeleton argument.

[AA99]

Thanks Andy, but it still has to be submitted today?  

 

I am really going round in circles with adapting that one I quoted above.  So confusing responding to their claim with numbering, etc.

[AndyOrch]

Well tomorrow or at the very latest Wed....leniency should be allowed..This is what happens when you wait for the court to notify you rather than acting from the claimant application notice which informs you that you can respond and it must be served not less than 7 days hearing date.

 

" So confusing responding to their claim with numbering, etc. "

 

You should be responding to their statement by paragraph...not the court claim

[AA99]

I've started on my WS and am referring to Shoos WS but they're not representing now are they?!  I haven't seen anything from Arrows since,  just a Draft Order listing :

 

1.  The stay on proceedings be lifted;

2.  The Defence dated 3 Nov 16 be struck out;

3.  Judgement be entered for the Claimant in the sum of xxxxxx

4.  The Defendant do pay the Claimant's costs summarily assessed at £ blank

 

Not dated either

 

Also still referring to Shoos still as the Claimant

Edited March 11, 2019 by AA99
ps

[AndyOrch]

On 01/02/2019 at 00:27, AA99 said:

My edited WS as best I can......

Shoosmiths WS.pdf 2.98 MB · 11 downloads

You respond to the above......the change of Solicitor is irrelevant

[AA99]

Yes, that's what I'm using.  Thanks, will plod on

[AA99]

I now have  a copy of my 1st draft, very stuck on my Defence part though.  If I post the edited version up for you, it won't make much sense though.  Can I email it to you?

[dx100uk]

pop it up here as a multipage pdf only please

read upload

[AA99]

AA99 WS p.1.pdf AA99 WS p.2.pdf

[AndyOrch]

Honestly.?.....very poor AA99....default notices have no connection to Pre Action Protocol.

Is that the only point you have of defence.....no Default Notice ?

 

andy

[AA99]

It would seem so.  Any suggestions?

[AndyOrch]

From the claimants particulars of claim .....

 

2.The defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant to the Consumer Credit Act 1974.

 

You made no response to this in your defence or put them to strict proof to disclose the original default notice or produce a computer trail log  from their internal audit accounting system it was ever served.

 

From their witness statement they state....

 

 

You must put them to strict proof re the above and that a template default notice is pointless in disclosing evidence in support of its claim.

Section 87(1) of the CCA is very clear....

 

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,—

 

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

(c)to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

And Further more

 

The claimant or the Assignor has failed to comply with issuing regular Notice of Default Sums.

 

86E Notice of default sums

(1)This section applies where a default sum becomes payable under a regulated agreement by the debtor or hirer.

(2)The creditor or owner shall, within the prescribed period after the default sum becomes payable, give the debtor or hirer a notice under this section.

(3)The notice under this section may be incorporated in a statement or other notice which the creditor or owner gives the debtor or hirer in relation to the agreement by virtue of another provision of this Act.

(4)The debtor or hirer shall have no liability to pay interest in connection with the default sum to the extent that the interest is calculated by reference to a period occurring before the 29th day after the day on which the debtor or hirer is given the notice under this section.

(5)If the creditor or owner fails to give the debtor or hirer the notice under this section within the period mentioned in subsection (2), he shall not be entitled to enforce the agreement until the notice is given to the debtor or hirer.

 

 

Add the above into your statement