Backdoor Cabot/Mortimer CCJ - old LLoyds Card DEbt - N55/N56

[AndyOrch]

Responding to your PM molly2

 

Yes just serve a copy of your defence on the claimants sols and file a further copy with court.

 

Andy

[molly2]

The set aside hearing for this default judgement is set for Monday next week.

 

So today, just 1 working day before the hearing, I have received a witness statement from Cabot's solicitors.

 

Can I just ask the court to disregard their witness statement as they haven't served it 14 days in advance of the heading ?

[AndyOrch]

They wasn't ordered to file a witness statement in the above order?

[molly2]

Nope they wasn't ordered to do anything.

 

The order on 22 December was for me to file and serve my defence to the court and the claimant.

 

On 29 December, the court sent a copy of my N244+defence to both the Claimant and myself, with notification that Monday 13 March will be the hearing date.

 

I've heard nothing since, until today.

Edited March 10, 2017 by molly2
clarification

[AndyOrch]

Okay thanks molly...well I assume this is in objection to your set a side....can you possibly upload the statement (redacted) ?

[molly2]

Here is the witness statement. Yes they are definitely objecting to the set aside!

 

Sorry the last page has come out first.

 

There is a covering note stating that

 

We refer to the above matter [claim reference given above] and enclose:

a) the Witness Statement of [Cabot employee] together with enclosures in readiness for the forthcoming hearing on 13/03/2017, and

b) the statement of costs.

 

Pursuant to CPR 27.9, [Cabot employee] will not be attending the hearing.

Cabot Mort Witness March 2017.pdf

Edited March 10, 2017 by molly2
add covering note details

[AndyOrch]

Thanks Molly

 

Okay the main points that jump out at me...the wrong address issue...they state you never informed LLoyds ...and as we know if you didn't then the last known address is deemed as good service.

 

The other point is that they are rolling out the old Carey argument and wishes to rely on a recon agreement..your agreement is pre 2007 so that wont wash....Carey is not retrospective....and is irrelevant with regards to enforcement only in the providing of information pursuant to section 77/78/79 CCA1974.

 

The other point is that they only refer to the termination date...not the default date ...so from the termination date of Jan 09...now if the claim was issued July 2015...then it would be safe to think it may be statute barred ...as the default date will precede the termination date by possibly as much as 4 weeks.

 

Back to the witness statement...or response to the defence.

 

Consequence of failure to serve witness statement or summary

 

CPR 32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

 

Service of Witness Statements

 

If a party intends to rely on a witness statement they must send a copy to the other side and to the court prior to the hearing. If the court has given any special directions requiring the parties to produce witness statements, the statements should be served in accordance with those directions.

 

Regards

 

Andy

[molly2]

Thanks Andy

I was with Payplan 2008-2014. Payplan have provided me with a statement issued to Lloyds in 2010 indicating changed address. Am I allowed to bring this to court to show the judge, even though it wasn't mentioned in my defence ?

Regarding enforcement for pre 2007, is the judge likely to know that Carey vs HSBC is irrelevant, or will I be expected to prove this by citing the relevant wording from the judgement ?

I'm not sure what they meant by termination date in their witness statement. Jan 2009 was the default date. I think they're using the terms termination/default interchangeably. Anyhow, payments continued to be made until 2014 through Payplan so not statute barred.

I expect if the set aside is granted then another date will be set for a trial

I will get a chance to respond to their witness statement at that later trial.

Is that how it works ?

[AndyOrch]

Thanks Andy

 

 

I was with Payplan 2008-2014. Payplan have provided me with a statement issued to Lloyds in 2010 indicating changed address. Am I allowed to bring this to court to show the judge, even though it wasn't mentioned in my defence ?

 

Yes

 

 

Regarding enforcement for pre 2007, is the judge likely to know that Carey vs HSBC is irrelevant, or will I be expected to prove this by citing the relevant wording from the judgement ? Only if you tell him why

 

I'm not sure what they meant by termination date in their witness statement. Jan 2009 was the default date. I think they're using the terms termination/default interchangeably. Anyhow, payments continued to be made until 2014 through Payplan so not statute barred. Fair enough

 

 

I expect if the set aside is granted then another date will be set for a trial anyway so I will get a chance to respond to their witness statement at that later trial. Is that how it works ?

 

Not always...as you have already submitted your defence and the claimant has responded with its objections and reasons...it may be decided there and then at the hearing.Therefore I would consider drafting a Skeleton Argument for the hearing (3 copies) pointing out the errors in their witness statement.

 

The wrong address issue is de minimis as the set a side should be granted however its a factor that should be taken into account by the court with regards to the claimant behaviour and underhand tactics in attaining judgment.

This should then be regarded throughout the whole claim and any other further attempts to mislead the court.

 

It will all hinge on the agreement and the need to produce the original signed executed agreement.....and that a reconstituted version is not suffice for enforcement purposes and therefore sec127 .1 (b) of the CCA1974/ precedes Carey.

 

http://www.legislation.gov.uk/ukpga/1974/39/section/127

[molly2]

HI Andy

 

Here's my skeleton witness statement to respond to the Claimants witness statement.

 

Would you be able to take a look and let me know if anything needs changing. I have tried to cover all your points.

Defendant Witness statement 13 March 2017.pdf

[AndyOrch]

Excellent Molly...you need to get that filed and served fast though as I suggested a skeleton argument not a witness statement.The minimum time allowed is 3 days before the hearing.

 

Andy

[molly2]

There's no time for file and serve. Hearing is tomorrow, Monday afternoon.

No harm in taking my draft witness statement along to the hearing, to use as reference I guess.

Claimant served their witness statement last Friday, I guess that counts as 3 days before the hearing ?

They have stated, pursuant to CPR 27.9, they will not be attending the hearing. Thus seems to me to be a breach of protocol as CPR 27.9 requires submission 7 days prior to a hearing for a witness statement to be considered.

[AndyOrch]

Well they have requested costs for attendance in their Witness statement...So I assume they will be in attendance at the hearing.

 

Best of luck for today molly.

 

Regards

Andy

[molly2]

Thanks Andy. Yes a solicitor from Mortimers turned up and made their clients case.

 

However, the judge set aside the judgment and ordered the case be allocated to the small claims court.

[dx100uk]

well done

[molly2]

The Claimant has now served their second witness statement, for a small claims court trial set in July, as attached.

I now have a week to respond to their witness statement and have drafted the following in response to their second witness statement.

1. I am the Defendant in this case.

2. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief.

3. I make this statement in opposition to the Claimant’s Second Witness Statement dated 5th April 2017. The same numbering as in the Claimant’s witness statement has been used.

6-8. The Claimant contends that the letter sent to the Defendant dated 20/07/2016 was an administrative error and should not have been sent where a County Court Judgment is already in place.

The aforementioned judgment was subsequently set aside on 13 March 2017 therefore a County Court Judgment is no longer in place.

The Defendant sent a further request for documentation under Section 78 of the Consumer Credit Act 1974 on 8 April 2017 which was received by the Claimant on 10 April 2017. The act states that the Claimant has 12 days to respond, otherwise the Credit Agreement is rendered unenforceable. To date a response has not been received.

9-10. The Claimant claims that the Defendant has been provided with documentation to satisfy his request pursuant to the Act.

However, the Defendant did not reside at the address given on the Reconstituted Credit Agreement at the date the Claimant claims the Credit Agreement was executed. Therefore the Reconstituted Credit Agreement provided does not infact satisfy a Section 78 request

11. Section 127(3) of the Consumer Credit Act 1974 states that 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 itself containing all the prescribed terms of the agreement was signed by the debtor.

The Defendant contends that no such document exists since not only has the Claimant been unable to locate such a document in the past 9 months since the Defendant requested to see a copy, the Defendant also does not recall ever signing such a document. Therefore the Defendant believes that the court should not make an enforcement order for the debt.

12. As stated in point 11, a court shall not make an enforcement order unless it can be satisfied that a signed copy exists or has existed. The Claimant has in fact stated that it is not able to provide a copy of the original credit agreement. The defendant asks the court to follow section 127(3) of the Consumer Credit Act 1974 and strike out the claim due to lack of evidence of a signed agreement.

Lloyds Second Witness Statement.pdf

[AndyOrch]

Very good molly...but just one suggestion

 

When did you enter into the original agreement before or after 2007? Before, 2003.

 

You need to trash the statements point 10 and reiterate that carey is not applicable to a pre 2007 agreement.

 

You must submit and serve not less than 3 days

 

Regards

 

Andy

[dx100uk]

hows this going?

 

 

dx

[molly2]

Revised draft, need to get this off friday, how does this sound ?

 

 

1. I am the Defendant in this case.

 

2. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief.

 

3. I make this statement in response to the requirements of paragraph 4 of the Court Order dated 13 March 2017. I have used the same numbering as the Claimant’s second witness statement responding to the requirements of paragraph 3 of the Court Order.

 

Evidence in response – letter dated 20/07/2016

 

6-8. The Claimant contends that the letter sent to the Defendant dated 20/07/2016, in response to the Defendants section 78 request, was an administrative error as no response is required where a County Court Judgment is in place.

 

The County Court Judgment was subsequently set aside on 13 March 2017.

 

On 8 April 2017, the Defendant sent an additional request for documentation under Section 78 of the Consumer Credit Act 1974. This request was received by the Claimant on 10 April 2017. The Act states that the Claimant has 12 days to respond, failing which the Credit Agreement becomes unenforceable. As of 28 April 2017, a response has not been received.

 

9. The Claimant’s position is that the Defendant has now been provided with documentation to satisfy the request pursuant to the Act, in the Exhibits to the Claimant’s Second Witness Statement. However, on or around 13 March 2003, the date the Claimant claims the Credit Agreement was executed, the Defendant did not reside at the address given on the Reconstituted Credit Agreement. The Reconstituted Credit Agreement must be a ‘true copy’ of the executed agreement, which must include the name and address at the time of execution. As this was not the case, the Section 78 request remains in default.

 

 

10. The case of Carey v HSBC Bank plc approves a method of satisfying a Consumer Credit Act 1974 Section 78 request, which is to provide a reconstituted a copy of the executed agreement.

 

However, Section 127(3) of the Act continues to apply to agreements made before 6 April 2007.

 

Section 127(3) of the Consumer Credit Act 1974 states that 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 itself containing all the prescribed terms of the agreement was signed by the debtor.

 

The Defendant contends that no such document exists since not only has the Claimant been unable to locate such a document in the past 9 months since the Defendant requested to see a copy, the Defendant also does not recall ever signing such a document. Therefore the Defendant believes that the court should not make an enforcement order for the debt.

 

Therefore by reason of sections 61 and 65(1) of the Act, the agreement may be considered to be wholly unenforceable.

 

Conclusion

 

12. A court shall not make an enforcement order unless it can be satisfied that a signed copy exists or has existed. The Claimant has stated that it is not able to provide a copy of the original credit agreement, and also failed to provide a reconstituted copy so far. The defendant asks the court to follow section 127(3) of the Consumer Credit Act 1974 and strike out the claim due to lack of evidence of a signed agreement.

 

13. The Defendant submits that this Witness Statement complies with the requirements of paragraph 4 of the Court Order dated 13/03/2017.

[AndyOrch]

Fine...dont forget to add the headers and statement of truth ...sign and date.

[molly2]

Witness statement sent.

 

2 weeks before court date, Mortimer have come up with another witness statement, similar to their previous one.

 

Except now they've appended a statement of their costs.

 

Their case (point 9.) seems to hinge upon the FCA's Consumer Credit sourcebook rule 13.1.4, a firm is able to reconstitute a copy of the agreement to satisfy a CCA 1974 Section 78 request, i.e. Carey vs HSBC.

 

I think my witness statement refuted this point adequately and so no point in a further witness statement from me.

LL CW3.pdf

[dx100uk]

doesn't wash your agreement is from 2003

[AndyOrch]

Getting desperate arnt they ...third witness statement...that will impress a District Judge ...not

[thefunkymonk]

I have not read everything up on this but IME there is a fine line to be drawn between requiring the other side to come up with what you as the Defendant consider to be strong evidence/absolute proof and what the judge believes what has happened taking into consideration all the evidence they have seen.

Judges have wide ranging powers and an over riding remit to "do good" so it doesn't go in your favour to appear too smug.

As a Lay person a Judge will give you a reasonable margin and not expect you to know the law in a lot of detail. Use that to your advantage. You dont want to come over as a smarty pants vs a wronged Layperson.

This doesnt mean you should not be prepared to whip out some bits of law but the court room drama Ahaa .. here is the killer evidence moment, is best left for Hollywood.

This is one of the biggest mistakes intelligent lay people make.

they can read the law and make some considerable sense of it, they can put arguments together and present themselves.

It all helps, but the Judge by and large has to believe you are the wronged party when they could in law make a decision either way. Case law often gives them plenty of wriggle room.

Lawyers avoid court and avoid giving guarantees for a reason.

Court action is inherently risky.

[molly2]

Just been to court and I lost.

 

Judge said the burden of proof was on me to prove the recon had the wrong address and I hadn't proved it sufficiently.

 

Judge was not too familiar with Carey Vs HSBC and the other party argued that lack of a signed agreement did not prevent enforcement of a pre 6 April 2017 agreement.

 

I appealed but the judge refused my right to appeal. Now my only option left is to ask for reconsideration of my right to appeal.